As Christine notes, one of the questions asked by the moderator -- Judge Diane Sykes -- was "What impact does law blogging have on the judiciary and are there any ethical considerations that are triggered by judges reading blogs?" I think all of us bloggers -- Christine, me, Howard Bashman, Richard Garnett, Jason Czarnezki, and Eugene Volokh -- thought that blog posts that might influence real decisions are no more worrisome than newspaper op-eds. They're published openly, so what's the problem?
[O]ne questioner in the audience questioned the ethical propriety of trying to influence a judge on a pending case. Again, the panel did not believe that this phenomenon was any more troubling that op-eds about pending cases or law review articles arguing what the law ought to be in general in a specific area. However, from overhearing the audience participants after the panel, I understood that the questioner's concern was widespread.Interesting! I think people do feel threatened by blogs. Suddenly, a new set of individuals have amplified voices and a daily audience. That has always been the case with mainstream media, but this seems so strange and chaotic. You might want to tell them that since anyone can do it, it's less disturbing than mainstream media, which used to dominate and monopolize. But with blogs, there are so many of them and they might say anything about anything. They might make a point of being completely unfair. Some of the most popular blogs got popular that way. And what must be even more confounding is that it seems that in order to balance the blogs that go against you, you're supposed to blog too. It's horrifying to think that you may be required to blog. Blogging is a new kind of speech competition -- a speech rat race. What?! Now we have to keep up with the Instapundits?!
I formed a hypothesis that at least some practitioners (the ones that I overheard) were concerned that blogs created a one-way advantage in the way that ex parte conversations do. If one litigant can get the attention of the blogs, then is the other litigant at a disadvantage? One woman near me said to her colleague "The thing about blogs is that if they say something about me, I can't respond." I wanted to assure her that most blogs have "comment" functions, but I didn't want to fuel her paranoia. What is it about blogs that non-bloggers find so dangerous (and "unduly influential")?
But this insinuation that the legal bloggers are unethical -- I think that's a desperate ploy to get us to stop or at least feel constrained. They feel threatened, so they'd like to make us feel threatened back. But it's such a lame argument to suggest blog posts are somehow like ex parte communications with the judge.
Anyway, I enjoyed this subject of judges reading blogs. Howard Bashman had a story of someone seeing that Chief Justice Roberts having How Appealing shamelessly displayed on his computer screen. Do they have to think now about how their opinions will play in the blogs? And is it good -- or somehow degraded -- for them to be thinking about such things? Do they suspect the other judges of writing lines that the bloggers will quote? But that's not much different from looking at what the newspapers think or seeing what lines get quoted in the newspaper, and as Eugene Volokh said on the panel, at least the bloggers link to the original texts. The newspapers choose what they want to quote or paraphrase, but then that's all the readers get. The law bloggers as a rule link to the text of the case or the transcript of the oral argument, and if we've taken something out of context, our readers can go right to the source, and they can call us on our distortions in our comments sections or on their own blogs.
I noted that the panel was heavily stocked with academic bloggers. It was a relatively sedate group, if I was the edgiest person there. I said I thought it was good for judges to read the more irreverent bloggers like David Lat because judges -- even more than law professors -- are often surrounded by people who are extremely deferential to them, and they ought to want to expose themselves to some different attitude. Law blogs are a handy way for them to transcend the cocoon.
More about the panel later, maybe. I've got a huge deadline to meet in the next 16 hours. Plus, "American Idol" is on tonight.
ADDED: It occurs to me that lawyers just don't know how to use Google or Technorati to check to see if anyone is blogging about their cases, so that the discussion really doesn't seem to be going on openly and in public. The solution is obvious: They need to learn.