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Supreme Court Justice Kennedy kicks off discussion on influence of law blogs

September 6, 2010

Orin Kerr, a professor of law at George Washington University Law School and leading law blogger, picked up on recent comments by Justice Anthony Kennedy on the importance of law blogs.

On August 19th, Justice Kennedy gave an address that included an interesting passing remark about the role of blogs. Justice Kennedy was talking about how law review case comments generally come out too late to be of use to the Court (especially in the context of deciding whether to grant certiorari in a case). As a result, when Justice Kennedy asks his clerks to look to see what the law reviews have said about a particular case, there isn’t any commentary yet. Justice Kennedy adds: “I’ve found, what my clerks do now, when they have interesting cases — They read blogs.”

Justice Kennedy’s comments weren’t lost on University of Wisconsin Law Professor and noted blogger, Ann Althouse.

This means that the lawprofs who keep up high-profile blogs have disproportionate influence. You have traditional lawprofs laboring over law review articles, but these articles come out too late to discuss a case that’s pending in the Supreme Court. One answer — I’m not the first to say this* — is that law review articles should properly be about something other than the latest pending or just-decided cases, something more timeless and profound. But I think that most law professors would like to be involved in the legal developments of the day. It must be irritating to see that the lawprof bloggers have a special line to the Court.

Althouse goes to ask what I’ve always wondered, will law professors be required to blog?

This may stir up an old question that I know nags at some law professors: Will I be required to blog? Very soon after I started blogging, I heard the question is it acceptable for lawprofs to blog? and then, right after that, the question will I be required to blog? jumped up. In the minds of some non-blogging lawprofs, it preceded the question is it good for lawprofs to blog? — which seemed like a more appropriate question to me. But I can see why someone with a legal mind would ask will I be required to blog? before is it good for lawprofs to blog? It’s the same reason lawyers think what do I want the answer to be? before they try to figure out what the answer is.

Anyway, Justice Kennedy’s remark shows why it’s good for lawprofs to blog, but it would be ridiculous to require lawprofs to blog. Wouldn’t it? Or is it ridiculous to require lawprofs to write law review articles?

UCLA Law Professor and noted blogger in his own right, Stephen Bainbridge took it a step further arguing, ‘Why Blawging Ought to be Part of the Law Prof Biz.’

Citing Althouse’s comments, Bainbridge made clear that the Judges in Delaware were reading law blogs.

I have good reason to be confident that Delaware jurists also are reading those of us who toil in the corporate law blogosphere. Now the powers that be just have to figure out metrics and rewards for those of us who do so successfully.

There’s no question Bainbridge was referring to comments from his friend and LexBlog Network blogger, Francis Pileggi, that the Chief Justice of the Delaware Supreme Court is a regular reader of Pileggi’s Delaware Corporate and Commercial Litigation Blog.

The practice of lawyers bringing in associate counsel who have authored treatises, law reviews, and articles to associate with on important cases is widely accepted. The reason being that such lawyers may have greater influence with trial or appellate court judges.

Well today influence is more apt to be measured by whether a lawyer publishes a blogs that’s read by judges and their clerks.

Hat tip to the Washington Times’ Culture Briefs for turning me on to this discussion.

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