Detroit’s Steve Cernak shared in my LinkedIn Legal Blogging Group this morning that judges read law blogs too.

The 7th Circuit decided a case last week on the application of the Foreign Trade Antitrust Improvements Act — an arcane and confusing antitrust statute. That court, per Judge Posner (a noted blogger himself), quoted several paragraphs from two pieces written by Bob Connolly, including a blog posting on his Cartel Capers.

Connolly blogged that he was quite surprised and happy that Judge Posner quoted from two pieces he had written on the FTAIA and the Motorola Mobility case.

A recent article about Motorola’s suit notes the problems with private antitrust suits of this kind. It points out that ‘virtually every product sold in the United States has some foreign‐made component,’ implying an enormous potential for suits of this character should Motorola prevail, and noting too that “the U.S. government has reason to weigh comity and sovereignty concerns when bringing international component cartel case[s],” but “private plaintiffs do not.” Robert Connolly, “Motorola Mobility and the FTAIA,” Cartel Capers (Sept. 30, 2014), http://cartel capers.com/blog/motorola‐mobility‐ftaia.

Judge Posner continued:

Connolly amplifies his analysis in another recent article, “Repeal the FTAIA! (Or at Least Consider It as Coextensive with Hartford Fire),” CPI Antitrust Chronicle (Sept. 2014), www.competitionpolicyinternational.com/repeal‐the‐ftaia‐ or‐at‐least‐consider‐it‐as‐coextensive‐with‐hartford‐fire/. As is apparent from the title, the article ranges far beyond the issues in our case. But the article does discuss the case at some length, offering (at pp. 3–7) a number of pertinent observations, particularly concerning the differences between a private damages suit and a government suit seeking criminal or injunctive remedies: ….

This is so powerful on a number of fronts.

  • Practicing lawyers with deep expertise in a niche area of the law can directly impact judicial decision making. Their blogs are being cited by lawyers before the court and the court is taking notice of blog analysis. No longer is such influence the near exclusive territory of legal scholars and academia.
  • Law blogs are further establishing themselves as secondary authority in the law. Secondary authority is an authority purporting to explain the meaning or applicability primary authorities such as statutes, case law, or administrative regulations.
  • Via Law blogs, we’re witnessing the disintermediation of traditional law reviews, law journals, and legal treatises as the source of secondary authority.
  • Unless Thomson Reuters (WestLaw), LexisNexis, and Wolters Kluwer, which edit and publish secondary law, begin to play a role in this ‘citizen based’ publishing on law blogs, they are going to loose their monopoly on publishing the “secondary authorities.”
  • Connolly’s style will only continue to grow. It’s what real lawyers do and there’s a revenue model behind it — business development.

In the addition to the contribution to the law, this type of blogging works big time for business development.

In response to Cernak sharing word of Judge Posner citing Connolly’s blog I commentated that I wished more lawyers understood the value of blogging — not just look at blogging as an opportunity to market. Being recognized as an authority like Connolly is worth a ton as far as word of mouth and your reputation as a leading lawyer. Before blogs a practicing lawyer could only dream of such recognition.

Cernak of Schiff Hardin LLP acknowledged that my points apply to Connolly and his blog nicely — “I know I’ve referred work to him because of the expertise he’s shown through his blog postings.”

Exactly.