Why Blawging is Bad For Law

Hello Folks.

I’ve joined Co-Op today from Prawfsblawg. This is by my count the fifth time I’ve introduced myself at a new blog-home. That makes me a bit of an itinerant blogger. It is also pretty ironic, because I generally think that the institution of blogging/blawging threatens to fundamentally disrupt some very valuable aspects of how law is currently organized, administered and transmitted.

To take an example I posted on recently on Prawfs, consider what happens to the common law when the primary sources which form its skeleton — judicial opinions – become the fodder for the entertainment of an audience of millions of eager web-surfers. Yes, I’m talking about you, Howard. It isn’t that How Appealing, and like blawgs, are bad. Indeed, I visit Howard’s blawg every day, and it is an invaluable resource. It is that Howard’s popularity, and the increasing linking of opinions by the MSM-online, provides incentives for judges to write witty, funny, entertaining, short, glib opinions, instead of careful, boring, technically precise ones. That is, to the extent that lower-court judges want to be noticed and profiled by (kind of silly) websites like these, it makes sense to be more like Scalia and Douglas than Souter and Rutledge.

Some might protest: surely federal judges don’t care much about having their opinions widely publicized? They have life tenure, and they care only about not being reversed. But the motivations of federal judges seem to me to be an open question, and I think that if I could somehow chart the growth of funny and media friendly opinions, we’d see a small bump beginning with the introduction of WL and a huge increase in the last five years.

So, why is this bad?

To find out, you’ll have to visit here again, as I will be retuning to this topic soon.

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5 Responses

  1. Mike says:

    Isn’t the counter to your position that increased public attention to judicial opinions might require judges to be more intellectually honest in their opinions? If judges know that the world is watching a cadre of opinion-dissectors, might judges more carefully reason their opinions? I hope that appellate judges, after reading the uniformly negative response to the Ninth Circuit’s judicial cover-up in In re Judicial Misconduct, realizes that these cover-ups destroy the public’s respect for judges. (Oddly, In re Judicial Misconduct was released almost in tandem with an ABA eJournal report wherein the public voiced its concern that judges were unaccountable. Go figure … the public might be on to something!)

    Indeed, where as judges refuse to name dishonest and unethical judges and prosecutors in cases, bloggers lack this trepidation. Maybe judges, realizing that the world will find out anyway, will interject some transparency into opinions involving judicial and prosecutorial misconduct. The conspiracy of silence, while keeping unethical persons out of Westlaw, won’t keep them out of Cyberspace.

    In any event, I doubt your premise, namely that people are reading judicial opinions just because others are linking to them. A lot of people say, “X v. Y sucks!!! It was politics, not law!!!” Just ask them: “Plese tell me how X v. Y departed from clearly-established precedent,” and then see what happens. You might as well eat cloves of garlic.

    Heck, perhaps one downside to blawgs is that bloggers tend to think that the world-at-large – rather than a handful of law nerds who would have read the opinions anyway – are reading opinions. By the way, I hope I’m wrong, and that people really are devouring judicial opinions.

  2. Joe Miller says:

    Perhaps the future is already here. For example, take a look at Judge Alex Kozinski’s article, Who Gives a Hoot About Legal Scholarship?, 37 Houston Law Review 295 (2000). On page 299, he states the following with respect to writing for inclusion in casebooks: “How important do I think casebooks are? So important that, once in a while, I write an opinion precisely for the purpose of getting into one. Mind you, it doesn’t change the outcome of the case, but it does change the way I write the opinion.”

  3. You argue that a Judge will alter his rulings on law merely to be published? It is amazing that you’re concerned about the improper influence of the dubious honor of having an opinion talked about in the media when much stronger and more sinister forces have been at work on the corruption of our Judiciary. How susceptible would these same judges be to bribes, ethnic (racist) loyalties, extortion, and conflict of interest? The only concern I have with media coverage of judicial opinions is that the organized crime families which operate on the playing fields of our “justice system” have considerable control and influence over the mainstream media. Consider the “it’s just a sex scandal” and “The Mann act is soooo out of style” coverage spin by the media of the revelation that Eliot Spitzer was doing business with organized crime while he was a U.S. Attorney and New York State Attorney General. At least this one crime family, with who knows how many varied business interests, had career ending dirt on Spitzer all the time when he was in control of determining which criminal referrals were investigated, prosecuted, or burned. The neo-Mafia’s most valuable asset is have a mole in Law Enforcement, but nothing could match the profit making and protecting power of having control over the Attorney General. Where is the Federal Commission to examine the myriad of cases which Spitzer burned in order to protect his associates? We spent how many tens of millions of dollars on Scooter Libby’s faulty memory of non-classified gossip, and Bill Clinton’s blue dress fetish, but we can’t seem to investigate the most damning link between organized crime and Law Enforcement in U.S. history? Goodness, those rich New York boys sure know how to wag the dog.

  4. You argue that a Judge will alter his rulings on law merely to be published? It is amazing that you’re concerned about the improper influence of the dubious honor of having an opinion talked about in the media when much stronger and more sinister forces have been at work on the corruption of our Judiciary. How susceptible would these same judges be to bribes, ethnic (racist) loyalties, extortion, and conflict of interest? The only concern I have with media coverage of judicial opinions is that the organized crime families which operate on the playing fields of our “justice system” have considerable control and influence over the mainstream media. Consider the “it’s just a sex scandal” and “The Mann act is soooo out of style” coverage spin by the media of the revelation that Eliot Spitzer was doing business with organized crime while he was a U.S. Attorney and New York State Attorney General. At least this one crime family, with who knows how many varied business interests, had career ending dirt on Spitzer all the time when he was in control of determining which criminal referrals were investigated, prosecuted, or burned. The neo-Mafia’s most valuable asset is have a mole in Law Enforcement, but nothing could match the profit making and protecting power of having control over the Attorney General. Where is the Federal Commission to examine the myriad of cases which Spitzer burned in order to protect his associates? We spent how many tens of millions of dollars on Scooter Libby’s faulty memory of non-classified gossip, and Bill Clinton’s blue dress fetish, but we can’t seem to investigate the most damning link between organized crime and Law Enforcement in U.S. history? Goodness, those rich New York boys sure know how to wag the dog.