Four New Cases Citing Legal Blogs
Three months ago I posted a collection of 23 court opinions which cite legal blogs. Since then there have been four more examples, which are listed below. These cases will be added to the “official” collection (the prior list) soon. Each case below is followed by the quote containing the blog citation, and some additional commentary.
The first two cases cite Sentencing Law and Policy, and the third case cites The Volokh Conspiracy. Most significantly, the fourth case cites De Novo, which is the first law student blog ever to be cited in a court opinion.
1. United States v. Cage, 451 F.3d 585, *26 n5 (10th Cir. 2006)
“According to a leading academic chronicler of sentencing decisions, "it seems all post-Booker within-guideline sentences and nearly all above-guidelines sentences are being found reasonable, whereas many below-guideline sentences are being reversed as unreasonable." Professor Douglas A. Berman, Sorting Through the Circuit Circus, Sentencing Law and Policy, at http://sentencing.typepad.com/sentencing_law_and_policy/2006/04/
tracking_reason.html(April 28, 2006).”
The Cage opinion was further discussed by Prof. Doug Berman here and here. The original blog post cited by the Cage opinion has also been updated (here). This demonstrates that once a court opinion cites to a blog, the post being cited can be updated and revised, and the blog can comment further on the case. Interestingly, the blog post cited in Cage is a collection of previous posts discussing (and usually linking to) other court opinions.
2. United States v. Kandirakis, 2006 U.S. Dist. LEXIS 53243, *3 n4 (D. Mass. 2006); Kandirakis, *44 n36
“…see also Letter from Jon M. Sands, Federal Public Defender, to Hon. Ricardo Hinojosa, Chair, U.S. Sentencing Commission (July 19, 2006), Memorandum at 1 ("The Commission should not continue to recommend minimal constitutional protections."), available at http://sentencing.typepad.com/
“Though the presumption is purportedly rebuttable, as of July 31, 2006, the Sentencing Law and Policy Blog kept by Professor Douglas A. Berman of The Ohio State University Moritz College of Law (http://www.sentencing.typepad.com), and which reports in near-realtime on Booker and other sentencing issues, had noted only a single case in which a within-Guidelines sentence was reversed as unreasonable.”
The Kandirakis opinion was further discussed on Sentencing Law and Policy here. Then, in a follow-up post, Prof. Berman linked to an analysis of Kandirakis at the Ninth Circuit Blog here. Once a court cites to a legal blog, that same blog can 1) discuss the case in a new post and 2) link to other blogs which are analyzing the case. By citing a legal blog, the court potentially joins itself to (and directs readers to) any subsequent analysis of the case on that same blog and in the legal blogosphere as a whole.
3. Harper v. Poway Unified Sch. Dist., 2006 U.S. App. LEXIS 19164, *6 (9th Cir. 2006)
“A respected First Amendment scholar notes that the panel majority’s decision constitutes
a dangerous retreat from our tradition that the First Amendment is viewpoint-neutral. It’s an opening to a First Amendment limited by rights to be free from offensive viewpoints. It’s a tool for suppression of one side of public debates (about same-sex marriage, about Islam, quite likely about illegal immigration, and more) while the other side remains constitutionally protected and even encouraged by the government.
Eugene Volokh, Sorry, Your Viewpoint Is Excluded from First Amendment Protection, April 20, 2006, http://volokh.com/posts/1145577196.shtml.”
The Harper opinion was further discussed by Prof. Volokh here. As already mentioned, legal blogging allows for post-citation commentary about the very case that cited the blog. Furthermore, a blog can enable interested readers to discuss the opinion in the comments. At the time of this (3L Epiphany) blog post, the post at the Volokh Conspiracy discussing Harper has 45 comments. The original post, the one cited by the Harper dissent (from the denial of rehearing en banc), now has 258 comments. A court citation to a legal blog thus allows readers of the blog to discuss the decision both on the original (cited) post and in subsequent posts about the case.
4. United States v. Scott, 450 F.3d 863, 894 n5 (9th Cir. 2006)
“Judge Bybee's foresight has been echoed by the defense bar, noting that even though the majority is attempting to protect "the ideal espoused in our legal system that a citizen is innocent until proven guilty, . . . it is only fair to point to the problems that this may create from a policy standpoint. If all suspects charged with a crime retain all their rights if they are released, why would the state release them? I mean, they have to set reasonable bail, but if the accused cannot afford this bail, (so mainly the poor), they will have to remain behind bars until their trial." http://www.blogdenovo.org/archives/001073.html (last accessed June 1, 2006).”
The Scott decision is the first court case to cite a law student blog. (One arguable contender would be Jason Hernandez's "Blakely Blog" cited in Smylie v. State, but the context makes it clear that the judge was referring to Sentencing Law and Policy.) De Novo is a law student group blog. Sean Sirrine authored the post that was cited in Scott while he was a 1L, but the court mistakenly characterized him as a member of the "defense bar." The original blog post cited now contains a correction of the error by "PG," another De Novo blogger. For an appellate court to cite a 1L's blog post (written before journal membership is even possible) is a remarkable event. The Scott citation is further discussed at the Volokh Conspiracy here.
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Tracked on Aug 3, 2006 9:07:21 PM
I'm a little worried that the inaccuracy that resulted from the citation of Sean's post -- the incorrection description of him as a member of the defense bar rather than a student -- may make judges (or more likely, clerks) excessively wary about citing blogs unless they know them very well. Then again, googling for the name of the case and citing the first post you see isn't a good idea.
Posted by: PG | Aug 4, 2006 10:59:21 AM
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