« March 2006 | Main | May 2006 »

Blogging the Harvard Bloggership Conference

I attended the Harvard Conference on “Bloggership” last Friday, which was a fascinating event. It was wonderful to meet these bloggers in person and listen to their ideas. Prof. Paul Caron of TaxProf Blog deserves great credit for organizing the conference, and I’d also like to thank him for inviting me.

    

I have collected a group of blog posts which discuss the conference. The posts are in reverse chronological order unless they specifically follow the day’s events. I include the blogger’s name where it is not obvious. Readers who are aware of missing blog posts can add them in the comments.

    

Althouse (Prof. Ann Althouse)

Brian Leiter’s Law School Reports

Concurring Opinions (Prof. Daniel J. Solove)

The Conglomerate (Prof. Christine Hurt)

The Conglomerate (Prof. Gordon Smith)

Discourse.net (Prof. Michael Froomkin)

eon (Prof. Charles R. Nesson)

How Appealing (Howard Bashman)

Instapundit (Prof. Glenn Reynolds)

Is That Legal? (Prof. Eric Muller)

Kenneth Anderson’s Law of War and Just War Theory Blog

The Legal Janitor (Si Han Xu, Singapore)

Legal Theory Blog (Prof. Lawrence Solum)

Opinio Juris (Prof. Roger Alford)

Orin Kerr

Sentencing Law and Policy (Prof. Doug Berman)

Technology and Marketing Law Blog (Prof. Eric Goldman)

Timothy K. Anderson

The Volokh Conspiracy (Prof. Jim Lindgren)

April 30, 2006 in Academic Blogging | Permalink | Comments (1)

I'm Leavin' on a Jet Plane...

I'm off to the Harvard Conference. I won't be live-blogging it, but I'll write about the Bloggership Experience when I return.

At some point in the near future, probably when I'm studying for the Bar, I will be sending off a "Bloggership" of my own around the Web...

April 27, 2006 | Permalink | Comments (0) | TrackBack

Q and A with a Skeptical Professor: "It's All Online!"

What follows are excerpts from an email conversation I had with a professor, who gave me permission to post this with or without attribution. I prefer to keep his name discreet since I am posting excerpts and not the emails in their entirety, and because I have made minor changes to my own responses.

      

In an email to this professor (and others) I made the following statement: “I can say with near certainty that any law student who blogs for a semester on a legal topic, provided he or she does it with a high standard, will gather far more readers and receive far more professional recognition than by turning in a seminar paper or even publishing a law review article.”

          

The professor responded, “But will they learn as much that is relevant to their intellectual development and/or future clients? After all, the National Enquirer has lots of readers.”

    

He then followed up with several questions: “As someone who may have bloggers for credit some day in my future, I'm curious: What did you do for credit besides provide a list with sub-categories?  Is there a paper you wrote? Is it on line?  How many credits did you get? How is the work being evaluated for grading purposes?”

      

Here are my answers. The professor's original questions are in italics, followed by my responses:

    

But will they learn as much that is relevant to their intellectual development and/or future clients?
    
It depends on what they do with their blog. A blog is a form of both writing and publishing which has some advantages over traditional forms. But the intellectual content is up to the student. If they analyze a case or legal specialty over the course of the semester, a blog will make it available to the entire legal profession in a way that a seminar paper will not, even if it's later published.

   

As far as relevance to future clients, blogging is one way to attract clients in the first place (see e.g. Do You Blog?, an article from DC Bar). If a lawyer has an interest in a particular specialty (say, e-signature law) and creates an authoritative blog on the topic, and establishes a well-regarded online presence, potential clients will quickly discover him. Creating a blog is not a substitute for learning analytical skills, but it is a better way to display them than traditional forms of publication.

    

I would suggest that one benefit to clients (but difficult to measure) comes from being part of the “blog-conversation” that judges and lawyers are increasingly paying attention to.

    

After all, the National Enquirer has lots of readers.

   

Yes, they do! When I said that students gain more readers through blogging than by turning in a seminar paper or publishing in a law journal, I took it as a given that the readers would be understood as legally sophisticated. For example, these readers here are not likely to be readers of the National Enquirer.

      

Also, when I occasionally check my Sitemeter, I find that there are many readers of my blog from the U.S. Courts, from various government agencies, and from a myriad of law firms. Recently I had someone from the House of Representatives spend a half-hour reading my blog. My point, again, is that law students benefit from blogging because they establish a more significant readership (not National Enquirer readers, but perhaps not law review readers either).

       

As someone who may have bloggers for credit some day in my future, I'm curious: What did you do for credit besides provide a list with sub-categories?

      

Well, it was a lot more than a “list with sub-categories,” in my opinion. I recently spent an entire hour with a lawyer from a large law firm who was absolutely intrigued by the taxonomy, both the content and the structure. Many people in the legal profession have sent me emails thanking me for creating it. My goal was to demonstrate the advantages of a particular form, a new online model for writing and publishing. Creating and subdividing a list is relatively easy, while publishing a blog taxonomy online - creating one blog post after another and making sure they all interrelate - is not easy, but it is more beneficial. I suppose you could say I received credit for providing a service to the legal profession, as many lawyers and law professors have indicated (see here again). 

    

Is there a paper you wrote? Is it on line?

    

No, that's my point! It's all online! There was no paper. I didn't turn in anything, I posted it all online. And that's what I believe students should do more often, at least as Independent Study projects. They don't need to turn in a paper which gets buried forever among many, and they don't need to go through the ordeal of trying to publish it in a law review. They can post it online - not only the finished product, but the very process of creating it. The blog itself is the product, and more people, from more places, will read it than will read a student's work in a traditional scholarly form.

    

I will tell you, however, that when I finally have time (when school is over, and the Bar), I hope to write a paper about my observations and experiences, and will seek to have it published in a law review. If I ever do this, I won't submit it through the traditional process. I'll post my paper on my blog, and invite law review editors to read it. Then I will publish it in the first one that makes the request. I hope to establish another precedent that way. Maybe no one will respond, but nevertheless that is the direction legal publication is headed. We are in the 21st century, and the current system belongs to the 19th.

    

How many credits did you get?

   

Two credits. By the way, I didn't need these credits to graduate. I could have taken 14 credits this semester (that is, minus the two for the blog) and still graduated. One student critic suggested that blogging was an easy way for me to get credit. Quite the contrary. But I went through with it because I am very passionate about how legal blogs can have a transformational effect on the profession, including our current system of legal education. I wanted to establish a precedent of “blogging-for-credit” for future law students, and at the same time display to law professors and lawyers the tremendous variety of legal blogs that are out there, and the advantages of blogging over traditional forms of scholarly publication.

      

How is the work being evaluated for grading purposes?

      

It's “pass/fail,” which doesn't require the same evaluation as grading. My understanding is that most if not all Independent Study projects here are pass/fail. Suffice it to say, I've passed.

      

For your own future students who request a blog-for-credit project, I don't see why the evaluation should be that much different from how you would grade a regular paper. It's the form of blogging, not necessarily the content, that's distinct. The final product to be graded, the blog itself, will be an accumulation of many “posts” rather than a paper. Some of the blogs in these categories might serve as examples: Case Blogs, Statute Blogs, and Trial Blogs. If you wish, you could require the student to take all of his posts and put them together into a smoother, more cohesive whole. But even in that case I would suggest he still display the final product on his blog, regardless of whether he turns in a hard copy to you as his professor. That way the potential value of your student's work will not be buried under similar papers in an obscure corner of your office, but will be visible and available to the entire legal profession.

April 25, 2006 in Credit for Blogging? | Permalink | Comments (1) | TrackBack

What About Political Blogs? Explaining an Inconsistency

One of the most difficult decisions in making my Taxonomy of Legal Blogs was whether to include certain political blogs. Obviously the fields of law and politics overlap extensively, and there are numerous blogs which cover both topics. My rule of thumb was that I would not consider a blog to be a “legal blog” if less than 1/3 of the posts were about legal matters. If a blog was both legal and political, but not focused too much on the latter, I usually included it in this category: General Blogs – Law and Culture, Economics, Politics, etc. To have included blogs in my taxonomy which were far more political than legal would have changed the nature of what I was trying to accomplish.

    

However, in compiling my Collection of Law Review Articles Citing Legal Blogs I was more lenient. I included blogs which were cited by articles even though they were omitted from my taxonomy. Examples are Instapundit (cited 9 times), Leiter Reports (cited 6 times), and The Right Coast (cited twice), which are obviously very different in style, content, and political persuasion. These three blogs are not included in my taxonomy, despite receiving law review citations, because they are primarily political blogs and not legal ones. My criteria for including blogs in the taxonomy and in the collection of law review articles were different.

   

Each of these three blogs deserves a further word. 

    

1. I did not include Leiter Reports, which is a philosophical blog as well as a political one, in my taxonomy. Several of the citations to Leiter Reports in the law review articles concern law school rankings. The more recent blog Leiter’s Law School Reports, part of the Law Professor Blog Network, is now the location of Prof. Leiter’s commentary on rankings and other academic matters. Leiter’s Law School Reports is included in my taxonomy in the categories Legal Academia and Law Professor Blogs.

      

2. Some readers will no doubt be surprised that Instapundit is not included in my taxonomy. But Instapundit rarely focuses on legal matters. Instead it mainly links to alternative news sources and gives brief commentary on politics and current events. Prof. Reynolds sometimes writes about space law or nanotechnology law, but only occasionally. I have great respect for Prof. Reynolds, and even blogged about his interview on C-Span here (Richard Nixon makes an appearance). But Instapundit is for the most part a political blog by a law professor, not a legal blog. The judge in this case thought so as well.

      

3. The Right Coast has one particular post that should be pointed out: A voice, crying in the wilderness, and then just crying. Tom Smith writes about the low number of law review articles that are cited by other articles or by court decisions. Readers who are interested in similar topics can also go to the posts on 3L Epiphany about Blogs and Law Reviews. Unlike many law review articles, 3L Epiphany has been cited in four academic papers after only three months.

        

One more detail concerning the law review article collection is worth mentioning. When counting citations, I only looked at the name of the blog which was cited in the law review article. I did not take into consideration whether the blog post was from a guest blogger. In a few cases an article may have cited to a post by a guest blogger, one who normally posted at a different blog, but that didn’t matter. I listed the article under the name of the blog cited. Similarly, I did not include guest bloggers when figuring out the numbers in the Group Blogs category in my taxonomy.

April 25, 2006 in Taxonomy Omissions | Permalink | Comments (0) | TrackBack

Webcast of Harvard Symposium

The Harvard Symposium will include a live webcast. Details here.

April 25, 2006 in Announcements | Permalink

Academic Blogging Reminder

When I first began 3L Epiphany I compiled a collection of posts on Academic Blogging from 21 different blogs. This was followed by Addendums 1 and 2. These posts discuss whether blogging can be considered academic scholarship. It seems appropriate to remind readers about this collection in the wake of the Bloggership Symposium at Harvard Law School on Friday. For the related topic of how blogs compare to traditional law reviews, see this index.

April 25, 2006 in Academic Blogging | Permalink | Comments (0) | TrackBack

New Version of Law Review Article Collection

I previously posted a collection of law review articles citing legal blogs. Originally I posted this collection as two documents: a 2-page Table of Contents and the 27-page Collection. These have now been merged together into a single document, available at the same location.

    

Howard Bashman, of How Appealing, was kind enough to convert this document into a pdf file. If you prefer Adobe Acrobat to Microsoft Word, the pdf file is now available (scroll down). Thanks, Howard!

    

Fans and acolytes of Mr. Bashman should be sure to read the highlights from his excellent lecture here at Ohio State: How Appealing: The Life of Howard Bashman. It contains great advice about blogging and appellate practice.

April 25, 2006 in Updates | Permalink | Comments (0) | TrackBack

3L Epiphany Gets Cited in Four Academic Papers

I will be attending the Bloggership Symposium at Harvard this Friday. The papers of the participants have already been posted here. It was extremely gratifying to learn that four of the papers cited 3L Epiphany. Those papers are:

Much thanks, professors!

      

It is worth pointing out that I have been blogging at 3L Epiphany for only three months, yet I've now been cited in four academic papers by well-known law professor bloggers. On the other hand, the case note that I wrote for law journal took more than a year to write, edit, and publish. It is still not in print and so it has not been cited once by anyone. If my case note has been read at all, it is because I've already posted it on my blog at Footnote 123 (with an explanation here).

   

Blogging is not an elixir, but its advantages over traditional forms of publishing are obvious and extraordinary.

April 24, 2006 in Academic Blogging | Permalink | Comments (1) | TrackBack

A Mention in the Beltway Blogroll, and a Third Judge Responds

The two recent interviews with judges about legal blogs have attracted a lot of attention, including a write-up in the National Journal’s Beltway Blogroll. I am now posting a third judge's responses.

These answers are from Judge James S. Gwin (Northern District of Ohio). He wrote the decision in the case of United States v. Onunwor. I would like to thank Judge Gwin for taking the time to respond:

1. When you cited a legal blog, did you consider it unusual or unprecedented at the time?

No. Judges frequently cite to matters outside the realm of court decisions, and legal blogs are one other form of legally related materials.

2. How often do you read legal blogs?

Weekly but not daily.

3. Which are your favorite legal blogs?

Professor Berman's Sentencing Blog.

4. Do you consider blogs to be substantial and legitimate forms of scholarship?

Not really substantial. (I do not believe most were ever intended to be an in-depth discussion of a legal issue.)

5. Do you think legal blogs will begin to be cited more often by the courts?

Not sure, but very possible.

6. What predictions do you have about the effect of legal blogs on the profession?

[Chose not to answer.]

7. What other changes to the legal profession do you foresee because of the Internet and the on-line world in general?

I foresee a continued quickening of the pace of legal and judicial practice.

8. Do you regularly read law reviews? If so, which are your favorites?

Other than Harvard Law Review, I usually only review current law review articles that are case related or I believe are of current interest.

9. What advantages and disadvantages do legal blogs have when compared to law reviews and other traditional forms of scholarship?

[Chose not to answer.]

10. Do you have an opinion about whether law students, lawyers, and/or law professors should blog?

No real opinion.

11. Do you think it is appropriate for judges to blog? If you were to start one, what subject(s) would you write about?

Not to give discussions about matters that may be currently before them.

12. (Off the subject of blogging:) If you could change one thing about the legal educational system, what would it be?

[Chose not to answer.]

April 24, 2006 in Judges on Legal Blogs | Permalink | Comments (0) | TrackBack

Blog Law Conference

There was a fascinating conference in San Francisco this past weekend on “Blog Law and Blogging for Lawyers.” Dennis Crouch of Patently-O co-chaired the conference, and has collected posts from bloggers in attendance.

April 24, 2006 in Lawyer Blogging | Permalink | Comments (0) | TrackBack

Alice in Wonderland Meets 3L Epiphany

Brandy Karl (bk!) is hosting Blawg Review #54, and it’s well worth a visit. She takes the creative approach of turning it into an “Alice in Wonderland” narrative.

Here’s her description of my recent work:

Both law clerks and law students may have too much Time. Ian Best, however, receives the all important Academic Credit for his work at 3L Epiphany, has assembled a list of Law Reviews that cite blogs, to follow up his other list of law clerks legal opinions that cite blogs.

>Sigh<, said the Rabbit. “I wish I had more Time.”

April 24, 2006 in Miscellaneous | Permalink | Comments (0) | TrackBack

Welcome and Introduction for New Readers

For readers who are here for the first time, this Table of Contents covers my work throughout the semester. Please feel free to stay awhile. I especially recommend A Taxonomy of Legal Blogs, which lists and categorizes more than 600 legal blogs.

    

3L Epiphany is most likely the first law student blog in the country ever to receive academic credit, which was profiled here: Blogging for Credit. For recent posts on 3L Epiphany about cases and law review articles citing legal blogs, and two interviews with judges about blogging (with very impressive responses), please scroll down.

April 20, 2006 in Greetings | Permalink | Comments (6) | TrackBack

A Collection of Law Review Articles Citing Legal Blogs

[Update: This post has now been revised and updated here.]

    

I am posting below a 27-page collection of law review articles which cite legal blogs. There are 70 legal blogs cited in this collection. I also included articles from state bar journals. The articles within the collection are organized according to the blog cited.

    

Besides being of general interest to readers, my hope is that this collection will be especially useful to the participants at the Harvard Law School “Bloggership” symposium on April 28 (details here), which I will be attending.

    

Not every blog in this collection has been included in my Taxonomy of Legal Blogs. For the purposes of my taxonomy I omitted blogs that were focused primarily on non-legal disciplines or topics. However, such blogs were included in this collection if they were cited in legal articles.

    

Readers who are aware of additional law review articles that are missing from this collection, or who wish to suggest other changes or corrections, may comment to this post. Because it is the end of the semester I will not be making revisions to this collection until after exams are over. For this reason I ask that any corrections or additions be posted here publicly for the benefit of other readers.

    

Here is the document:

[Update: I would like to thank Howard Bashman for converting the original Word document into a pdf version.]

    

The blogs included in this collection are listed below, with the number of citations for each blog in parentheses. The blogs with the most citations are Sentencing Law and Policy (60), The Volokh Conspiracy (41), Legal Theory Blog (24), How Appealing (19), SCOTUS Blog (19), Lessig Blog (17), Balkinization (14), and ProfessorBainbridge.com (11).   

  1. Althouse (1)
  2. Bag and Baggage (5)
  3. Balkinization (14)
  4. The Becker-Posner Blog (6)
  5. Blakely Blog (inactive) (2)
  6. The Common Scold (1)
  7. The Confrontation Blog (8)
  8. CONSEJO (inactive) (1)
  9. ContractsProf Blog (2)
  10. Crime and Federalism (1)
  11. Customs Law (1)
  12. Death and Taxes – The Blog (1)
  13. Discourse.net (1)
  14. Elder Law Prof Blog (1)
  15. Electronic Court Records (inactive) (1)
  16. Electronic Discovery and Evidence (1)
  17. Eminent Domain Watch (2)
  18. Equal Vote (2)
  19. ER Law & News (inactive) (1)
  20. Ernie the Attorney (1)
  21. Ex Parte (1)
  22. excited utterances (2)
  23. How Appealing (19)
  24. Ideoblog (4)
  25. Instapundit (9)
  26. Intel Dump (1)
  27. I/P Updates (1)
  28. IPKat (1)
  29. Is That Legal? (3)
  30. Jim Calloway’s Law Practice Tips (1)
  31. Jottings by an Employer’s Lawyer (2)
  32. Law Department Management (1)
  33. Legal Blog Watch (1)
  34. Legal Theory Blog (24)
  35. Leiter Reports (6)
  36. Lessig Blog (17)
  37. Mauled Again (1)
  38. Ms. Morality (inactive) (1)
  39. Navigating the Patent Maze (4)
  40. New York Civil Law (1)
  41. Ninomania (1)
  42. Ninth Circuit Blog (2)
  43. Nomination Nation (inactive) (1)
  44. the [non]billable hour (1)
  45. Opinio Juris (2)
  46. OrCon Law (1)
  47. Patently-O: Patent Law Blog (4)
  48. The Patry Copyright Blog (1)
  49. PrawfsBlawg (2)
  50. ProfessorBainbridge.com (11)
  51. Religion Clause (1)
  52. (The Return of) Ignatz (inactive) (1)
  53. RiskProf (1)
  54. SCOTUSBlog (19)
  55. Scrivener’s Error (1)
  56. Sentencing Law and Policy (60)
  57. Southern District of Florida Blog (1)
  58. Sports and the Law Report (inactive) (1)
  59. Statutory Construction Zone (inactive) (1)
  60. Supreme Court Blog (inactive) (1)
  61. Tax & Business Law Commentary (1)
  62. TaxProf Blog (2)
  63. Texas Law Blog (inactive) (1)
  64. Trial Ad Notes (1)
  65. The TTABlog (1)
  66. Underneath Their Robes (1)
  67. Utah District Court CMECF Updates (1)
  68. The Volokh Conspiracy (41)
  69. White Collar Crime Prof Blog (5)
  70. Wills, Trusts & Estates Prof Blog (1)

April 19, 2006 in Law Review Articles Citing Legal Blogs | Permalink | Comments (8) | TrackBack

Judge Richard Kopf (D. Nebraska): Legal Blogs Will Fill the Practicality Gap

Judge Richard G. Kopf (U.S. District Judge, Nebraska) authored the opinion in United States v. Bailey. He has responded to my questions about legal blogs below. I sincerely thank him for his interesting and often humerous answers.           

1. When you cited a legal blog, did you consider it unusual or unprecedented at the time? 

   

No. I cited Professor Berman’s blog in 2005, and by then there was little doubt that it was “authoritative.” More generally, I encouraged our local “Inns of Court” group to give a presentation in 2005 on the utility and respectability of legal blogs as legitimate secondary authority. (Incidentally, I cited “internet articles” before 2005, but those were not blogs. )

    

2. How often do you read legal blogs? 

   

Every day.

    

3. Which are your favorite legal blogs?

   

The two blogs I check everyday are: Sentencing Law and Policy and How Appealing.

   

4. Do you consider blogs to be substantial and legitimate forms of scholarship?

    

Sure, at least some of them are “substantial and legitimate forms of scholarship.” Blogs written by lawyers, judges, law professors and law students that provide solid information and critical analysis on subjects the authors know something about are just as authoritative as other secondary sources.

   

And don’t get me started about what are “substantial and legitimate forms of scholarship.” By eschewing any connection to the profession, a large segment of the legal academy has perverted the notion of “scholarship.” In my view, “scholarship” should not by synonymous with “irrelevance.”

   

On a personal note, let me reveal my bias. I opted out of a pretty good PhD program (that would have been paid for by others) and went to law school instead because I did not want to spend the rest of my life worrying about whether a coefficient of reproducibility of . 89 was good enough proof that one insignificant thing was related to another insignificant thing.

    

5. Do you think legal blogs will begin to be cited more often by the courts?

    

Certainly.

    

6. What predictions do you have about the effect of legal blogs on the profession?

   

My guess is that legal blogs will partially fill the “practicality” gap between the legal academy and the rest of us. Blogs provide a unique opportunity for law teachers to directly influence the development of the law in near real time. Doug Berman, and other legal academics like him, have already done so. They deserve great credit.

    

7. What other changes to the legal profession do you foresee because of the Internet and the online world in general?

    

The changes will be dramatic. Let me give you one example of an advancement that is now in place. It is called CM/ECF. That acronym stands for “Case Management and Electronic Case Filing” and it is a software and hardware system designed by the Administrative Office of the U. S. Courts. The system is based upon Internet access. Our court (the District of Nebraska) was the first federal district court to implement CM/ECF for all criminal and civil cases. Everything that was previously filed by paper (from indictments to briefs to motions) are now filed electronically. We made everyone (lawyers and judges) use it. Despite howls, CM/ECF has revolutionized how the bench and bar do their work. No more court files. The system provides instant and easy access to court filings night or day. Lawyers can file their stuff from any place in the world at anytime and I can read it in my pajamas when I have trouble sleeping. No one would go back now. Like the Borg, resistance to CM/ECF was futile.

   

What is next? I don’t know. I would guess that we would see big and small changes. For example, as video technology and the Net become interwoven, I see little reason to require witnesses to travel long distances to attend trials when they could as easily appear by interactive video. As another example, think about whether court reporters are needed given advances in digital audio recording. Digital audio recordings of trials can be provided over the Net, perhaps even in real time. Vendors located at any place in the world could access the digital audio over the Net and bid to provide transcriptions, presumably at very low prices. Such a system would obviate the necessity and exorbitant cost of employing a court reporter.

    

8. Do you regularly read law reviews? If so, which are your favorites?

    

I once wrote a law review article about whether judges read law reviews. See Richard G. Kopf, DO JUDGES READ THE REVIEW? A CITATION-COUNTING STUDY OF THE NEBRASKA LAW REVIEW AND THE NEBRASKA SUPREME COURT, 1972-1996, 76 Neb. L. Rev. 708 (1997). Like others, I found that while judges may read law reviews, law reviews have little obvious impact on their work. I think that remains true today. As for whether I read law reviews “regularly,” as Bill C. once said in another context, it depends upon the meaning of the word.

    

I tend to read law reviews in spurts. I think I am like most judges, I read them when I need them and can find something useful in them (which is not often). I don’t have favorites. Indeed, I find many of the “elite” reviews laughably beside the point.

    

9. What advantages and disadvantages do legal blogs have when compared to law reviews and other traditional forms of scholarship?

    

The advantages are obvious: speed, availability, and topicality. I don’t see real disadvantages.

   

Incidentally, you ought to convince Westlaw and Lexis/Nexis to buy your blog list. They should think about listing blogs like they list law reviews. Then convince them to develop a really good search engine for blogs.

   

As compared with legal blogs, law reviews and other traditional forms of scholarship (treatises and books, for example) serve different needs. Although the analogy is imperfect, when I try to conceptualize a place for blogs, it is helpful for me to compare legal blogs to case studies that doctors regularly write and read, right along with other more theoretical or systematic health care pieces.

   

10. Do you have an opinion about whether law students, lawyers, and/or law professors should blog?

    

I think they should. The more the better. I am particularly hopeful that law professors who are interested in the everyday problems confronted by lawyers and judges will do more blogging. I find those efforts very useful.

   

11. Do you think it is appropriate for judges to blog? If you were to start one, what subject(s) would you write about?

   

What an odd question. Do you think it “appropriate” for judges to write law review articles? Of course, it is “appropriate” for judges to write blogs if they feel the urge. To each his own. While I probably won’t write my own blog, I will provide comments to blogs if I really care about the subject and I think I can be helpful. Obviously, judges should be cautious about commenting on pending and impending matters.

    

If I were to write my own blog, it would have something to do with what it means to be a federal trial judge on a day-to-day basis. I am not sure, however, that I want to reveal that much about myself.

   

12. (Off the subject of blogging:) If you could change one thing about the legal educational system, what would it be?

   

For those who want to practice law, I would make law school longer and far more clinical.

    

- Richard G. Kopf, United States District Judge (Nebraska)

      

Editor's Note: Judge Kopf described question 11, in which I asked whether it is “appropriate” for judges to blog, as an “odd question.” The reason I phrased it this way is that judges who blog could unnecessarily complicate their work. For example, judges who blog about particular legal topics might be asked to recuse themselves more often because their personal opinions are no longer discreet. Lawyers might read such blogs for the sole purpose of seeking insights into how to persuade the judge. These and similar reasons may be why there are very few blogs by judges. Thus I am curious about whether judges are reluctant to engage in blogging because of the potential consequences within the profession.

April 18, 2006 in Judges on Legal Blogs | Permalink | Comments (3) | TrackBack

Justice Judith Lanzinger (Ohio Sup. Ct.): "The Future Will Belong to the Flexible"

I recently posted a collection of cases citing legal blogs. One example was State v. Foster, which was recently decided by the Ohio Supreme Court. The author of that opinion was Justice Judith Ann Lanzinger.

Justice Lanzinger graciously answered a series of questions that I sent her about legal blogs. Her replies are impressive and well-worth quoting, and I am posting them below with her permission. I would like to publicly thank Justice Lanzinger for taking the time to respond.

    

1. When you cited a legal blog, did you consider it unusual or unprecedented at the time?

   

It did not seem unusual to me at the time. I wanted readers of the opinion to have the most current information on a narrow issue (Blakely updates) and so I cited to a blog (Sentencing Law and Policy) that directs a reader to primary sources themselves.

    

2. How often do you read legal blogs?

   

Periodically, depending on time available.

    

3. Which are your favorite legal blogs?

    

I am still exploring and will pass on this one.

    

4. Do you consider blogs to be substantial and legitimate forms of scholarship?

    

Obviously, not all legal blogs are created to promote academic research. There are some, such as Professor Berman's, that do advance legal scholarship through this new forum. The legal blogger can sponsor ideas on current issues that can be reviewed immediately through the input of readers. The best serious blogs define a particular field of interest and inquiry and stay within that scope.

   

5. Do you think legal blogs will begin to be cited more often by the courts?

    

If worthwhile blogs continue to appear, and judges become aware of them, I think that citing will grow.

    

6. What predictions do you have about the effect of legal blogs on the profession?

    

Assuming that legal blogs are now in their infancy, and that they will grow to have a long and fruitful life, I think that lawyers who ignore them altogether will do so at their peril.

    

7. What other changes to the legal profession do you foresee because of the Internet and the online world in general?

    

Legal "geeks" seem outre to the quill pen practitioners of our profession, but I see that even those Luddites are being converted slowly to the hi-tech world, of necessity. The willingness to learn and relearn technology skills will be essential for mastery of new tech tools. The future will belong to the flexible.

    

8. Do you regularly read law reviews? If so, which are your favorites?

    

I don't have the time or inclination to slog through many law review articles in my spare time. When briefs refer to an article or I become aware of a piece that speaks to an issue of interest, I will try to read it.

    

9. What advantages and disadvantages do legal blogs have when compared to law reviews and other traditional forms of scholarship?

    

Because of publishing realities, law reviews may appear hide-bound while legal blogs operate with free-wheeling immediacy. The legal blog depends upon the integrity of the author rather than an institution -- no one is vetting accuracy of blog citations, for example. Editorial oversight over law reviews can bland articles down, or worse, fail to expose pedantic jargon. On the other hand, without peer review, blogs can publish anything and suppress anything –- so caveat emptor.

   

I believe that the serious blogs do have a time advantage in raising issues, networking primary sources, and serving as a clearinghouse for additional discussion. Law reviews have the luxury of handling an issue in depth; however the time lag can be a negative when fast-moving matters are being considered. Law reviews are permanent; one does not have to worry about a broken link or missing achival material. Nevertheless, even if (and maybe because) they are ephemeral, legal blogs are fun to read. Most cut to the chase and many have a sense of humor -- a plus in my book.

    

10. Do you have an opinion about whether law students, lawyers, and/or law professors should blog?

    

The First Amendment guarantees all of us the freedom to speak. The internet now gives us the opportunity to disseminate that speech in ways the broadside printers never dreamed. Of course I'm in favor of blogging.

    

11. Do you think it is appropriate for judges to blog? If you were to start one, what subject(s) would you write about?

    

Because I'm aware of the dramatic time commitment and the energy required, I would not start a blog as a judge. Maybe in retirement, many years from now -- since I've been a judge at every level of the court system in Ohio during the last 20 years -- I would have plenty to say.

    

12. (Off the subject of blogging:) If you could change one thing about the legal educational system, what would it be?

   

Having been an adjunct professor at the University of Toledo College of Law since 1987, I believe that law students must learn practical lawyering skills along with the ability to engage in complex legal analysis. I think legal education emphasizes the latter over the former and I would try to balance the two.

- Justice Judith Ann Lanzinger

April 18, 2006 in Judges on Legal Blogs | Permalink | Comments (5) | TrackBack

Cases Citing Legal Blogs

[Update: This post has now been revised and updated here.]

    

This is a collection of cases that cite legal blogs. The cases are listed below, and each case name is hyperlinked to a blog post containing 1) the excerpt with the blog citation, and 2) additional commentary. The URL's for the blog citations are active, and will bring the reader to the original online source.

    

The blog with the most case citations is Sentencing Law and Policy, with 21 citations in 17 cases. (Note that the majority and dissenting opinions in Ameline are posted separately; thus SLP is cited in cases #1-18.) Three other well-known legal blogs are represented, each being cited once: Legal Theory Blog for its archived lexicon, in Brasher's Cascade Auto Auction (case #19); The Volokh Conspiracy for a song parody, in Suboh v. Borgioli (case #20); and How Appealing for a reference to its "20 Questions" series, in Kennedy v. Lockyer (case #21).

    

The case of Batzel v. Smith (case #22) does not cite any legal blog as an authority, but instead names four examples of "popular and respected legal blogs": How Appealing, SCOTUSBlog, The Volokh Conspiracy, and Lessig Blog. It also names Instapundit as an example of a political blog. The final, unpublished case, Tsukroff v. Hedgeside Property & Inv. Co. (case #23) cites a California blog, The UCL Practitioner, for its collection of trial court orders and appellate briefs.

    

Cases Citing Legal Blogs

  1. United States v. Booker, 543 U.S. 220, 278 (2005) (Stevens, J., dissenting)
  2. United States v. Penaranda, 375 F.3d 238, 247 (2d Cir. 2004)
  3. United States v. Ameline (majority), 376 F.3d 967, 978 (9th Cir. 2004)
  4. United States v. Ameline (dissent), 376 F.3d 967, 986 (9th Cir. 2004) (Gould, J., dissenting)
  5. United States v. Rodriguez, 406 F.3d 1261, 1284 (11th Cir. 2005) (Tjoflat, J., dissenting)
  6. United States v. Levy, 391 F.3d 1327, 1341 (11th Cir. 2004) (Tjoflat, J., dissenting)
  7. United States v. Valencia-Aguirre, 409 F. Supp. 2d 1358, 1379 (D. Fla. 2006)
  8. United States v. Bailey, 369 F. Supp. 2d 1090, 1092 (D. Neb. 2005)
  9. United States v. Khan, 325 F. Supp. 2d 218, 223 (D. N.Y. 2004)
  10. United States v. Onunwor, Order NO. 1:04-CR-211 (N.D. Ohio Aug. 19, 2004)
  11. United States v. Phelps, 366 F. Supp. 2d 580, 584 (D. Tenn. 2005)
  12. United States v. Croxford, 324 F. Supp. 2d 1255, 1261 (D. Utah 2004)
  13. United States v. Wilson (Feb. 2, 2005), 355 F. Supp. 2d 1269, 1271, 1286 (D. Utah 2005)
  14. United States v. Wilson (Jan. 12, 2005), 350 F. Supp. 2d 910, 922 (D. Utah 2005)
  15. United States v. Johnson, 333 F. Supp. 2d 573, 577 (D. W. Va. 2004)
  16. United States v. Greer, 375 F. Supp. 2d 790, 795 (D. Wis. 2005)
  17. Smylie v. State, 823 N.E.2d 679, 687 (Ind. 2005)
  18. State v. Foster, 2006 Ohio 856, P8 (Ohio 2006)
  19. Brasher’s Cascade Auto Auction v. Valley Auto Sales & Leasing, 119 Cal. App. 4th 1038, 1057 (Cal. Ct. App. 2004)
  20. Suboh v. Borgioli, 298 F. Supp. 2d 192, 194 (D. Mass. 2004)
  21. Kennedy v. Lockyer, 379 F.3d 1041, 1065 (9th Cir. 2004)
  22. Batzel v. Smith, 351 F.3d 904, 906 (9th Cir. 2003)
  23. Tsukroff v. Hedgeside Property & Inv. Co., California Superior Court, Napa County, case no. 26-25117 (order dated 01/19/05) (unpublished)

April 15, 2006 in Cases Citing Legal Blogs | Permalink | Comments (4) | TrackBack

United States v. Booker

n4  Memorandum from Christopher A. Wray, Assistant Attorney General, U. S. Department of Justice, Criminal Division, to All Federal Prosecutors, re: Guidance Regarding the Application of Blakely v Washington, to Pending Cases, p 8, available at http://sentencing.typepad.com/sentencing_law_and_policy/
files/chris_wray_doj_memo.pdf
 
(hereinafter Application of Blakely); see also Brief for National Association of Federal Defenders as Amicus Curiae 9-12.

United States v. Booker, 543 U.S. 220, 278 (2005) (Stevens, J., dissenting)

    

    

Return to the main Cases Citing Legal Blogs page.

April 15, 2006 in Cases Citing Legal Blogs | Permalink | Comments (0) | TrackBack

United States v. Penaranda

n9 Many techniques currently being implemented by district judges in the aftermath of Blakely can be found on the Internet at Sentencing Law and Policy, at <http://sentencing.typepad.com> (last visited July 12, 2004; copy available in Court of Appeals' file).

United States v. Penaranda, 375 F.3d 238, 247 (2d Cir. 2004)

     

Return to the main Cases Citing Legal Blogs page.

April 15, 2006 in Cases Citing Legal Blogs | Permalink | Comments (0) | TrackBack

United States v. Ameline (majority)

Edwards did not argue that the Guidelines sentencing scheme violated his Sixth Amendment right to a jury trial; indeed, Edwards presumed that had the jury identified whether cocaine or cocaine base was the object of the conspiracy, the district court could have properly determined the quantity of the identified drug at sentencing consistent with the Sixth Amendment. "The Court did not opine on the guidelines' consistency with the amendment because that consistency was not challenged. It did not rebuff a Sixth Amendment challenge to the guidelines because there was no Sixth Amendment challenge to the guidelines. We are obligated therefore to make our own constitutional determination." Booker, 2004 U.S. App. LEXIS 14223, 2004 WL 1535858, at *5. n13

n13 The flood of post-Blakely scholarship supports this conclusion. See, e.g., Nancy J. King & Susan R. Klein, Beyond Blakely, 16 Fed. Sentencing Rep. __, n.21 (forthcoming June 2004) (available at http://sentencing.typepad.com/
sentencing_law_and_policy/files/kingklein_beyond_blakely.pdf
) ("We agree with Judge Posner on this point."); Stephanos Bibas, Blakely's Federal Aftermath, 16 Fed. Sentencing Rep. __, 6 (forthcoming June 2004) (available at http://sentencing.typepad.com/sentencing_law_and_policy/files/
bibas_blakelys_federal_aftermath.pdf
) ("Because Edwards did not squarely resolve a Blakely challenge, lower courts are not bound to reject Blakely challenges to the Guidelines.").
United States v. Ameline, 376 F.3d 967, 978 (9th Cir. 2004)
   

    

Return to the main Cases Citing Legal Blogs page.

April 15, 2006 in Cases Citing Legal Blogs | Permalink | Comments (0) | TrackBack

United States v. Ameline (dissent)

n4 For a "blog" on the internet cataloguing in detail recent developments relating to Blakely, see "Sentencing Law and Policy" at http://sentencing.
typepad.com
, a website of Professor Douglas A. Berman of the Moritz College of Law at The Ohio State University.
United States v. Ameline, 376 F.3d 967, 986 (9th Cir. 2004) (Gould, J., dissenting)

     

Return to the main Cases Citing Legal Blogs page.

April 15, 2006 in Cases Citing Legal Blogs | Permalink | Comments (0) | TrackBack