Law X.0

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.]

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.

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