Law blogs as a vast amicus brief

Pennsylvania Appellate lawyer Howard Bashman posts an op-ed at Law.com on viewing law blogs as a vast amicus brief. (reg. req’ed.)

For non-lawyers, an amicus brief is filed by a party who volunteers to offer information on a point of law or some other matter to assist a court of appeals in deciding an appeal before it. The decision whether to admit the information lies within the discretion of the judges.

I am in agreement with Howard across the board as to today’s situation:

  • There’s a proliferation of law-related weblogs, including blogs written by professors and attorneys with expertise in various substantive areas of the law.
  • Such blogs often offer a robust and insightful discussion of cases pending before the courts for resolution.
  • The legal blogosphere generates these types of discussions on noteworthy pending cases, and it is not unusual for those discussions to include thoughtful recommendations about how a court should rule based on existing law and policy considerations.
  • Under the old-fashioned model, courts based their rulings on the parties’ appellate briefs, the trial court record and any formal written amicus briefs that were filed with the court.
  • Even under the old system, the parties couldn’t completely prevent other relevant information that existed outside the briefs from coming to the attention of appellate judges.

And as to how judge’s should view blogs:

…[I]f the blog post is publicly available to anyone with Internet access, and if the blogger has not taken any steps other than publishing the post to draw it to the attention of the judges before whom a case is pending, then those judges are free to consider and rely on that information if they find it to be helpful. Such a blog post cannot be viewed as an impermissible ex parte communication any more than a New York Times editorial endorsing a particular outcome in a pending U.S. Supreme Court case could be viewed as such.

Furthermore, in my view, it is preferable for the appellate judge who becomes aware of an Internet posting about a pending case, written by someone with particular expertise in the area of the law at issue, to read the posting instead of refusing to consider it. The more informed a judge can become about the nuances of a particular area of the law before issuing a ruling, the more likely it is that the court will issue the best possible ruling in the case.

We expect appellate courts to conduct their own legal research, beyond that presented by the parties, with the goal of reaching the most lawful and just outcomes possible. When the legal blogosphere offers assistance in the form of insightful commentary about pending cases from law professors and lawyers with particular expertise in the subject matter under consideration, a judge’s consultation of those blog posts is, in my view, just another form of permissible legal research.

May shock lawyers who are unfamiliar with the scholarly discussion taking place on legal blogs but legal blogs are quickly becoming as good as law reviews and legal treatises. And the information and commentary is more timely.

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