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Bloggers Impacting the World of Litigation

kdawson posted more than 5 years ago | from the keeping-justice-blind dept.

The Courts 120

DaveKleiman writes "Will bloggers change the world of Supreme Court litigation by inspecting published opinions? Rachel C. Lee has an interesting take on the question in the Stanford Law Review, Ex Parte Blogging: the Legal Ethics of Supreme Court Advocacy In the Internet Era (PDF). She begins the review with: 'Lawyers have been arguing their cases before the Supreme Court for over two centuries, while the phenomenon of legal blogs is perhaps a decade old. Yet legal blogs cannot be dismissed as merely a sideshow novelty — they are already capable of having a substantial impact on Supreme Court litigation.' The review hits on many key points both for and against the use of blogging, but ultimately concludes that members of the Court and their staff will have to refrain from reading any blog post relating to a pending case, no matter who it is written by. It's even possible we'll get carefully drafted rules preventing blogging by attorneys." It's going to be tough to make any such prohibition work. After all, Groklaw's PJ is not an attorney.

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So instead... (3, Insightful)

Jaysyn (203771) | more than 5 years ago | (#27875791)

.. the law lobby will try to make it illegal for the "proles" to discuss case law.

Re:So instead... (3, Insightful)

eldavojohn (898314) | more than 5 years ago | (#27875887)

.. the law lobby will try to make it illegal for the "proles" to discuss case law.

Uh, I don't think the Stanford Law Review was advocating that. From the lengthy PDF they do try analyze (if you can call it that) what would happen under different types of reform. They list them as such:

  • Do Nothing
  • Do Too Much
  • Regulate Parties and Amici
  • An Open Invitation to Blog
  • Regulate the Court

I think the most outlandish thing they are proposing is stated as wildly outlandish (Do Too Much):

Instead of doing nothing, a code of ethics could theoretically attempt to do a great deal. Regulation could be draconian: no online discussion of pending Supreme Court cases by any licensed attorney. Such a rule would obviously go too far. It would impoverish public debate regarding the Supreme Court's work, and it would be wildly unconstitutional.

Not making it illegal, just regulating it heavily.

Re:So instead... (1, Insightful)

postbigbang (761081) | more than 5 years ago | (#27876305)

What would blatant, even anarchistic openness do that's bad? We're a nation of critics now. Whether seemingly entitled by degree or simply desire, we all get Free Assembly and Free Speech.

Where atty/client relationships are concerned, there are already many constraints as to what can be publicly published. The court of public opinion has always had a voice, and that voice has been listened to and acknowledged. That acknowledgement might be bending or swaying to those opinions, or in many cases (thank heavens) not.

The discipline enforced on SCOTA and other judiciary is important. Bring in cameras. Do YouTube when/where privacy isn't compromised. Talk about it. Blog it. Blogging is a lot like writing a column; it's opinion. Journalists will (hopefully) adhere to a different set of ethics that among other things, requires balance.

If you're a judge, your opinion's already published. And there are reams of law books and sources of online information that track the courts. What I'd like to see: if you litigate, and settle out of court, I'd like to know how you settled. It would keep the courts a lot cleaner and bereft of mindless litigation. If you take it to court, you must tell the court of your settlement to the complaint filed.

Important Cases for the Law Blogs (-1, Troll)

Anonymous Coward | more than 5 years ago | (#27876667)

This session of the Supreme Court will address 2 important cases. The 1st case is the reverse discrimination [latimes.com] endured by the European-American and Hispanic firefighters in the city of New Haven, Connecticut. The city gave a fair, objective written test to all firefighters seeking promotion. The firefighters who received the highest scores would receive promotions. Well, none of the African-Americans received a sufficiently high score. Because the test did not produce the right skin color, African-American leaders condemned the test and threatened the city with unspecified (possibly violent) action. So, the city canceled the results of the test. The Supreme Court should uphold the results of the test and should condemn the African-Americans.

The 2nd case facing the Court is the outdated parts of the Voting Rights Act. The Court should completely invalidate the entire Voting Rights Act. In both the Democratic primary and the general election, roughly 95% of African-Americans voted for Barack Hussein Obama due solely to the color of his skin. Clearly, the racism is coming almost entirely from the African-American community. The racism is not coming from either the European-American or Japanese-American community. So, the Voting Rights Act is unnecessary.

Legal Cases for the Law Blogs (-1, Flamebait)

Anonymous Coward | more than 5 years ago | (#27876805)

This session of the Supreme Court will address 2 important cases. The 1st case is the reverse discrimination [latimes.com] endured by the European-American and Hispanic firefighters in the city of New Haven, Connecticut. The city gave a fair, objective written test to all firefighters seeking promotion. The firefighters who received the highest scores would receive promotions. Well, none of the African-Americans received a sufficiently high score. Because the test did not produce the right skin color, African-American leaders condemned the test and threatened the city with unspecified (possibly violent) action. So, the city canceled the results of the test. The Supreme Court should uphold the results of the test and should condemn the African-Americans.

The 2nd case facing the Court is the outdated parts of the Voting Rights Act. The Court should completely invalidate the entire Voting Rights Act. In both the Democratic primary and the general election, roughly 95% of African-Americans voted for Barack Hussein Obama due solely to the color of his skin. Clearly, the racism is coming almost entirely from the African-American community. The racism is not coming from either the European-American or Japanese-American community. So, the Voting Rights Act is unnecessary.

Why not? (5, Insightful)

mister_playboy (1474163) | more than 5 years ago | (#27875889)

Even the most prideful members of /. go about saying "IANAL" almost out of sheer reflex any more. I'm tired of hearing it.

Lawyers have really managed to convince the population at large that they their art is magic... when in fact they ultimately do something directly analogous to what I did in high school speech: do some research and present an opinion in a persuasive manner.

Persuasiveness is much more important than having good evidence in both cases. Hardly something that makes one into a socially unquestionable demigod.

Re:Why not? (4, Funny)

Sir_Lewk (967686) | more than 5 years ago | (#27876031)

Well IANAL but I'm willing to bet a real one would disagree with you. ;)

Re:Why not? (5, Interesting)

GrifterCC (673360) | more than 5 years ago | (#27876179)

IAAL, a plaintiffs' attorney, in fact.

And actually, I do agree with parent. Most trials' facts are extremely close calls. The obvious cases always--ALWAYS--settle before trial. So, on these extremely close calls, it becomes a matter of persuading the jury or judge that your client's position is more correct.

What we do isn't magic. My caselaw search engine uses Boolean operators. Law school just teaches you the magic words to look for. We investigate the facts, we investigate the rules (laws, regulations, judicial opinions), and put together an argument for applying them in the way that gets the best result for our clients, within the confines of the ethical rules that govern us.

Re:Why not? (2, Funny)

Anonymous Coward | more than 5 years ago | (#27876311)

IAAL, a plaintiffs' attorney, in fact. ...
My caselaw search engine uses Boolean operators. Law school just teaches you the magic words to look for.

Interesting. Does your ambulance search engine show you their locations on Google maps?

(too easy to resist)

Re:Why not? (4, Interesting)

Zordak (123132) | more than 5 years ago | (#27877419)

I work for a big firm that does a lot of insurance defense, so I'm ethically obligated to disagree with GrifterCC ;-)

But really, while the law is not magic, it is very, very complicated. For example, if you're Average Joe, and you get served by Big Out of State Corporation (let's say it's a patent infringement case, and you're sued in the ED Tex.), your first impulse will probably be to shoot off an answer to the court saying, "No, court, they're full of it. This is nothing like their patent."

Two problems: chances are, you have no idea how patent claims work (because, in fact, most ATTORNEYS have no idea how patent claims work), so you really don't know if you infringe. And even worse, let's say you're running your little business out of Middle of Nowhere, ND, you've never left the state, and all your sales are local. Congratulations! You've just consented to jurisdiction in the great state of Texas! No going back. No do-overs. No appeals. You're going to Marshall.

Yes, you could have done some research on personal jurisdiction. Yes, you could have read Pennoyer v. Neff and International Shoe and the whole line of cases (after which, you would be even more confused). Yes, you could have gone down to the nearest law school library and done some research on special appearances, but you didn't even know that you needed to.

You hire a lawyer not because he knows everything, but because he has a pretty good idea of what he doesn't know and where to look for answers.

And since I'm a patent attorney, I have to throw this in: drafting patents (especially the claims) pretty much is black magic. Pro se patent applications (including pro se applications drafted by attorneys who are not patent attorneys) are almost uniformly worthless. Do not try this at home. You will fail. It will not blend.

Re:Why not? (1)

Trepidity (597) | more than 5 years ago | (#27879299)

I mostly agree, but I think there is a range of middle grounds. Many people see the law as some sort of black magic that they couldn't possibly understand without "being a lawyer", much like many people view "programming" as this mythical thing that mere mortals couldn't ever even think of doing. I think both views are somewhat harmful on the whole, even if lawyers and programmers are still necessary: it would be better if a significant percentage of people (at least to whom it was relevant) had basic understandings of each.

In the legal context, I've fortunately not needed to actually participate in any lawsuits, but I've found that having a decent working knowledge of multiple areas of law is useful in even knowing when to find a lawyer, and which kind of lawyer to find. Some lawyers are good at telling you, "no no, this isn't my area, you really want to see someone who specializes in 'magic keywords'". But not all lawyers do this; some, much like the laypeople you describe, overestimate the complexity of other areas of law. And of course, many people will end up having to make many legal decisions over the course of their lives without consulting lawyers--- people sign contracts all the time without being able to run every single one by a lawyer, and it would be ideal if they had some basic idea of what they were signing and what kinds of tricks to watch out for. Computer scientists in particular could do well to know some basics of copyright and patent law--- not to the point of drafting a patent, but to at least the point of being able to converse semi-intelligently on something and know some things about, say, software licensing.

Re:Why not? (4, Informative)

Zordak (123132) | more than 5 years ago | (#27879709)

Ironically, if people understood the law better, I'd probably have more work. People who understand the legal issues surrounding general partnerships and inventions know that they are playing with fire if they don't have some kind of LLC or S-Corp. to put their stuff in. They know how important it is to document things and think in advance. And they know that in school and practice I've seen a lot of issues they've never even considered, so I can draft language that will help prevent problems from arising. It's not because I'm smarter than they are. Some of my clients are absolute geniuses (others, not so much). It's because this is what I do every day.

I just litigated a case where (depending on whom you believe) either A stole B's invention after "leaving the fold," or B tried to come in and pretend he (and their loose partnership) was involved with the invention after he saw that A was on the brink of making a lot of money. Nasty, nasty business divorce. And the whole issue could have been avoided if the parties had a clear agreement in the first place.

Re:Why not? (0)

Anonymous Coward | more than 5 years ago | (#27878585)

Ethical rules? Lawyers don't need no stinkin' ethical rules!

Re:Why not? (0)

Anonymous Coward | more than 5 years ago | (#27882441)

within the confines of the ethical rules that govern us.

OK, you had me right up 'til you said that.

Re:Why not? (0)

Anonymous Coward | more than 5 years ago | (#27877555)

When did Apple announce the iAnal?

Re:Why not? (4, Insightful)

langelgjm (860756) | more than 5 years ago | (#27876051)

While there will probably be some lawyer who will post a contradictory comment, here's my take:

I've taken a general IP law course at one of the top law schools in the country. (I won't say the exact ranking to leave some mystery.) The thing that struck me is that you really need no specific background to understand this stuff. If my kids ever decide they want to go to law school, I'm not going to let them be taken in by people who say they should be doing a specific pre-law track. It's nonsense.

One of my friends did classics and linguistics as her undergrad, and got a full ride to a first-tier law school. On the other hand, if you want to do patent law, you need a technical background - science or engineering undergraduate degree (at least if you want to do the patent bar and be able to practice).

Really, if you can read and comprehend, you can understand the material. The challenge is that there is a bulk of it - now that I've taken this IP law class, I understand all the basic pitfalls, but since I don't know civil procedure, I have no idea exactly how lawsuits are filed, etc. But I have a feeling that if I got a civil procedure textbook, I'd be able to read and understand it without much trouble.

Minor Nitpick (1)

Alaren (682568) | more than 5 years ago | (#27876463)

since I don't know civil procedure, I have no idea exactly how lawsuits are filed, etc

Just FYI, IANAL but I did just graduate from law school. I passed Civil Procedure and Federal Courts, and I clerked for the Utah Supreme Court. And I still have only vague impressions of who I would need to call if I wanted to file a lawsuit, motion, brief, etc. Most legal practice is learned as an associate with a law firm.

Law professors (insipidly) claim that law school exists to teach you to "think like a lawyer," including "issue spotting" and "argument distinguishing" and such. While it's nice to have a "doctoral" degree in law, three years of law school is unnecessary to achieve this goal. Law could easily be an undergraduate track, or perhaps a one year graduate degree, as it is in many countries around the world.

You're absolutely right that you don't need any specific background to understand the law. I did learn a lot about specifics of the law in law school, and as an academic I enjoyed the experience for what it was, but I wanted to note that a civil procedure textbook is a great place for talking about civil procedure, but the last place you want to look for "how to file a lawsuit." There are practice aids and paralegals for mundane tasks like actually practicing the law. d^_^b

Re:Minor Nitpick (1)

Stopher2475 (780930) | more than 5 years ago | (#27876639)

"Law could easily be an undergraduate track, or perhaps a one year graduate degree, as it is in many countries around the world. " But then how would you keep everyone out of your lucrative field?

Re:Minor Nitpick (2, Insightful)

Tanktalus (794810) | more than 5 years ago | (#27876783)

It just wouldn't be lucrative anymore ;-)

Re:Why not? (1)

VenomPhallus (904463) | more than 5 years ago | (#27876855)

I expect you would. Civil procedure isn't (for the most part) particularly complicated.

But there's no way the average person is going to just *know* how to apply for directions, how to draft a witness statement, how to complete a claim form so that they can claim interest, which court they should be applying to, which statutes apply (and where to find them and to check they're in force still etc), what defences the other side may use etc etc. You're right - none of these things are particularly hard to find out (indeed courts tend to bend over backwards to help litigants in person) but add them all together and it's going to take someone who isn't legally trained far, far longer to put a case together than someone who is.

And the LiP screws it up, the ramifications can be huge.

Paying a good lawyer for an hour's work will save a LiP at least 10x that, as well as all the associated stress, worry and confusion.

And, just as importantly, they've got someone to sue if the case gets ballsed up ;-)

Re:Why not? (0)

Anonymous Coward | more than 5 years ago | (#27878381)

Paying a good lawyer for an hour's work will save a LiP at least 10x that, as well as all the associated stress, worry and confusion.

Are youa divorce lawyer by any chance? Because a Poisonous Dick is exactly the name I'd think of for that. More seriously, how then, does one know if a lawyer is actually Good? I thought the best you could hope for was Lawful Neutral (sorry, couldn't resist).

But how DO you tell if a lawyer (or accountant, etc) is any good? Referrals are fine... but frequently referrals are made by people who do not specialize in the referred subject - hence the referral. I've seen incompetent tech people get great referrals, but only because person A is so clueless that they think person B is great, when in fact person B took weeks to try to solve what person C figured out in an hour.

My ex-accountant botched a number of things for me. I eventually had to spend so much time dealing with the stuff he didn't that I learned enough to know he wasn't actually good at being an accountant, despite being one for 30 years.

I can only imagine the desperation of needing a lawyer putting one into a situation where they are ill equipped to find a good one.

Re:Why not? (1)

eldavojohn (898314) | more than 5 years ago | (#27876093)

Lawyers have really managed to convince the population at large that they their art is magic... when in fact they ultimately do something directly analogous to what I did in high school speech: do some research and present an opinion in a persuasive manner.

Well, I hate lawyers more than the next guy but they do more than that. I mean, do you know your state's law code (those books are huge)? Do you know all case histories on a particular subject? Do you have access to every single one of these cases? Do you spend 40+ hours a week reading this stuff? Is being misinformed dangerous when you're talking about the law?

It reminds me so much of the free energy nuts like this guy [cheniere.org] that haven't spent years and years studying physics and are missing something that invalidates all of their work. Should we have to take them seriously? Even after their proven wrong, they seem to persist. I assure you it would be far worse in law cases. Do you really want to have to page through that for a law case? Should a lawyer or judge really be held accountable for not taking every average citizen's two cents into account for a case? I think not. I am arguing for the "do nothing, ex parte blogging is fine the way it is" scenario presented in the paper. I am definitely against people being unable to discuss cases and pro-free speech but we are almost always massively uninformed so leave it as nothing more than blogging.

Re:Why not? (0)

Anonymous Coward | more than 5 years ago | (#27876221)

Well, I hate lawyers more than the next guy but they do more than that. I mean, do you know your state's law code (those books are huge)? Do you know all case histories on a particular subject? Do you have access to every single one of these cases? Do you spend 40+ hours a week reading this stuff? Is being misinformed dangerous when you're talking about the law?

Do lawyers do any of that? I think that's why they hire paralegals and research assistants. They need time to play golf with the DA and work their 'magic'; which might happen to be the force of their personalities.

Re:Why not? (4, Insightful)

xouumalperxe (815707) | more than 5 years ago | (#27876489)

Well, I hate lawyers more than the next guy but they do more than that. I mean, do you know your state's law code (those books are huge)? Do you know all case histories on a particular subject? Do you have access to every single one of these cases? Do you spend 40+ hours a week reading this stuff? Is being misinformed dangerous when you're talking about the law?

See it this way: how much studying does it take to have a really good grasp of the .NET framework, or the J2EE class library, or whatever other big programming environment you care to mention? A programmer's work is, in its fundamentals, much the same as a lawyer's: spend all week applying researching how to achieve your goals or minimize your losses, writing up your results, and they both heavily favour a mixture of experience (or knowledge) and talent expressing yourself -- be it in code or in speech. Both juries and compilers can be tricked into accepting things that are really really wrong, at times. There's nothing special about a lawyer's work in and of itself, the importance is the subject matter.

Should a lawyer or judge really be held accountable for not taking every average citizen's two cents into account for a case? I think not. I am arguing for the "do nothing, ex parte blogging is fine the way it is" scenario presented in the paper. I am definitely against people being unable to discuss cases and pro-free speech but we are almost always massively uninformed so leave it as nothing more than blogging.

The biggest virtue of this stance (and why I also favour it) is that I'm free to make up my own mind about who to read and who to ignore.

Re:Why not? (1)

Atlantis-Rising (857278) | more than 5 years ago | (#27876959)

The problem is that the .NET framework or the J2EE class library is not adding 3,000 pages of documented or undocumented features per week, unlike the judicial system. From statutory law at the state level, the federal level, and municipal bylaws to judicial decisions at the local, circuit, and Supreme Court level there's an immense amount of material to wade through.

Re:Why not? (1)

xouumalperxe (815707) | more than 5 years ago | (#27877367)

The problem is that the .NET framework or the J2EE class library is not adding 3,000 pages of documented or undocumented features per week, unlike the judicial system. From statutory law at the state level, the federal level, and municipal bylaws to judicial decisions at the local, circuit, and Supreme Court level there's an immense amount of material to wade through.

You have much faith in the development teams of such packages :). Seriously though, I explicitly didn't compare the professions in absolute terms. My point was more that, even if being a lawyer involves knowing a lot of stuff, that's not fundamentally different from other jobs like being a programmer, even if they might differ in scale. Much in the same way that being a physician isn't fundamentally different from being a physiotherapist, they just differ on matters of scale.

However, you seemed to miss one important detail: Just the same as you'll find Java programmers, and .NET programmers, and SAP programmers, you'll find divorce lawyers, IP lawyers, criminal lawyers (aren't they all, though? ;), etc. Those aren't so much hard divisions (which is the case for medical specialties) as they denote areas of expertise within a single profession, because of breadth -- Just the same as I'd prefer Johnnie Cochran over NYCL as my murder lawyer, I prefer my operating system kernels written by Linus Torvalds rather than John Carmack.

Re:Why not? (5, Informative)

GrifterCC (673360) | more than 5 years ago | (#27876107)

IAAL, but I am not your lawyer.

The legitimate, if somewhat carebearish, reason they do that, whether they know it or not, is that if someone reasonably believes you're offering legal advice, and she follows your advice and loses some legal right or money, she can sue you for legal malpractice.

"IANAL" hedges heavily against that. Just like when I invoke "IAALBIANYL" when I comment on legal stuff.

Re:Why not? (4, Insightful)

Anonymous Coward | more than 5 years ago | (#27876183)

if someone reasonably believes you're offering legal advice, and she follows your advice and loses some legal right or money, she can sue you for legal malpractice.

And yet, if your kind would say "tough luck toots, yer an idiot" to the idiots, it wouldn't be a problem. Instead, you say "well, this case looks tough, it'll be $200 an hour and I'll probably need 80 hours over the next two days to get started, and that's before it even goes to trial".

Re:Why not? (1)

clickety6 (141178) | more than 5 years ago | (#27876643)

Of course, if she actually follows your advice and makes a load of money, then you can bill her for millions...!

Re:Why not? (0)

Anonymous Coward | more than 5 years ago | (#27877181)

As opposed to paying a lawyer for legal advice, and subsequently losing a legal right or money because of it, they can't sue you for malpractice? Sounds pretty nice. You get paid, and still have no liability.

Re:Why not? (0)

Anonymous Coward | more than 5 years ago | (#27877353)

In every case, some lawyer is going to win and some lawyer is going to lose. It's not like building a bridge where every bridge is expected to not fail. It's more like playing a competitive sport, where it's expected that you'll lose quite often. Should lawyers be sued 50% of the time?

Re:Why not? (0)

Anonymous Coward | more than 5 years ago | (#27880959)

it's more along the lines of: if you can't sue when you DO pay for it, why can you sue when you DON'T pay for it?

Re:Why not? (1)

Jurily (900488) | more than 5 years ago | (#27877301)

f someone reasonably believes you're offering legal advice, and she follows your advice and loses some legal right or money, she can sue you for legal malpractice.

What. The. Fuck.

How can someone reasonably believe they're getting legal advice on a site with the motto "news for nerds" from random morons who might not even live in that country?

Quick test: Murder is legal as long as you're only killing your wife. This post constitutes legal advice.

Now sue me.

Re:Why not? (1)

xlation (228159) | more than 5 years ago | (#27878077)

The ethics rules/courts tend to weigh heavily on the side of protecting the "client"

It's probably not reasonable, in most cases, to expect a forum
poster is your attorney, but there is no reason why you can't
create an attorney-client relationship on an online forum.

If someone makes a claim, the "reasonableness" test is a point that will end up in litigation. By clearly stating that you are not their lawyer, you are hoping to make it so unlikely the plaintiff will will, they won't bother to file in the first place. (Or, if they do, you can easily get the claim dismissed.)

Your example is an obvious extreme, no one has any reason to
assume you are a lawyer and the "advice" is very general. That does not mean you can't craft a post that would truly be problematic.

Oh yea... IAAL BNYL

Re:Why not? (1)

Jurily (900488) | more than 5 years ago | (#27878335)

You missed one of my points. U.S. law does not affect me.

And of course, reasonableness would be much easier to determine, if the laws were based on common sense. You know, like if stuff can be copied for free with devices found in most households and companies, maybe you shouldn't criminalize the act based on laws dating back to steam engines.

Re:Why not? (1, Funny)

Anonymous Coward | more than 5 years ago | (#27879275)

I'll see you in court!

--
H. Reiser

Re:Why not? (1)

thePowerOfGrayskull (905905) | more than 5 years ago | (#27877487)

The legitimate, if somewhat carebearish, reason they do that, whether they know it or not, is that if someone reasonably believes you're offering legal advice, and she follows your advice and loses some legal right or money, she can sue you for legal malpractice.

You think that's why most slashdotters do that? You're very generous. I suspect most slashdot readers did not know that little tidbit of info until you posted it. Instead, they say IANAL because it leaves an "out" for when someone more knowledgeable comes along. It's almost like a talisman against being insulted by someone who knows what thye're talking about...

Re:Why not? (1)

maharb (1534501) | more than 5 years ago | (#27878103)

I think you are on the right track but maybe when a little overboard. People say it so that they can offer insight into an issue using the knowledge they have. For instance I have taken some law classes so I feel I could offer insight into a legal discussion, but by saying I am not a lawyer I am letting everyone know that my comments may be missing something but I don't know what it is because IANAL. So yes it is creating an "out" but isn't that better than posting like you are an expert or not posting at all?

Re:Why not? (0)

Anonymous Coward | more than 5 years ago | (#27877551)

I figured they were just offering alternative sexual services.

Oh, and for the record, I don't anal.

Re:Why not? (1)

butlerm (3112) | more than 5 years ago | (#27879203)

"The legitimate, if somewhat carebearish, reason they do that, whether they know it or not, is that if someone reasonably believes you're offering legal advice, and she follows your advice and loses some legal right or money, she can sue you for legal malpractice"

If that is the precedent, it ought to be changed. The rational rule is the same as contract law - if there is a contract (money changes hands etc.) then liability for faulty advice is created. Otherwise what is to prevent half of the world for suing the other half of the world for bad medical, dietary, parenting, car maintenance, gardening, etc advice?

Suppose I write a blog and say that this homeopathic remedy works really well and everyone should try it. Someone tries it and suffers an allergic reaction, or loses her money or whatever. Can they recover from the blogger for bad medical advice if no money changed hands?

The idea that one should have to put a disclaimer on any opinion about anything in any subject that might have any real world consequences regardless of nature of the relationship is the one of the most ridiculous ideas ever devised. It is for practices (and precedents) like that lawyers are rightly ridiculed as parasites on productive society.

tired of hearing... (0)

Anonymous Coward | more than 5 years ago | (#27876251)

"any more. I'm tired of hearing it."
yeah, me too. It's "these days".

Re:Why not? (0)

Anonymous Coward | more than 5 years ago | (#27876307)

Even the most prideful members of /. go about saying "IANAL" almost out of sheer reflex any more. I'm tired of hearing it.

Tired of it? IANAL, but one could say, you anal ;-)

Among IANALs here, we can be quite sure that the vast majority finds that lawyers suck. Politics and courts need more IANALs. The world will be a better place for it.

Re:Why not? (1)

AndersOSU (873247) | more than 5 years ago | (#27876707)

about prideful lawers:

One argument that struck me from the law review article was that blogging would unfairly advantage the well equipped (those who routinely argue before the supreme court and business interests). In fact, that might be the only argument laid out who's antithesis isn't examined.

The argument goes like this: there are only a handful of people who have the experience to influence the court at such a high level, so if a new avenue of communication is opened they will exploit it at the expense of the uneducated masses, in this case lawyers who only occasionally argue before the supreme court, the general public AND any experts (e.g. law professors) who might take an interest in the case, because all these groups lack the sophistication to craft a persuasive argument.

The problem with this conclusion, as I see it, is that the internet is a very populist medium that tends not to support entrenched interests. While traditional legal proceeding seem to many to favor the well-to-do, the internet is not part of a traditional legal proceeding. One example the law review author provided was that of the criminal defendant. It is my opinion that discussion in an open forum of a criminal case is likely to favor the defendant, since groups like the ACLU and the defense lawyer community have much greater resources than the district attorney.

Re:Why not? (2, Funny)

Jurily (900488) | more than 5 years ago | (#27877093)

when in fact they ultimately do something directly analogous to what I did in high school speech: do some research and present an opinion in a persuasive manner.

$.10 for tapping with the hammer
$.10 for knowing where to tap
$999.80 for being allowed to.

Re:Why not? (1)

PitaBred (632671) | more than 5 years ago | (#27877605)

For those who may not know, the parent is referencing this classic engineer joke [halfthedeck.com]

You're right (1)

reddburn (1109121) | more than 5 years ago | (#27877479)

Lawyers have really managed to convince the population at large that they their art is magic... when in fact they ultimately do something directly analogous to what I did in high school speech: do some research and present an opinion in a persuasive manner. Persuasiveness is much more important than having good evidence in both cases. Hardly something that makes one into a socially unquestionable demigod.

You know, you're partly right. A number of law schools hire prominent rhetoricians to teach logic and argument (it does make sense - the discipline of rhetoric evolved from Greek legal practices and the Sophists, who trained people how to argue for various public purposes).

Stanley Fish, who became fairly well known in academic circles for his contributions to English literary criticism, began applying his rhetorical methods to public policy and law, and eventually was hired as a professor of both English and Law at Duke. He has left English altogether now, becoming the Dean of the Law School at Florida International University. He does not have a law degree (only a Ph.D. in English) yet taught at one of the nation's top tier law schools (Duke). From what I gather, he's not the only one: law schools need people to teach a specialized brand of argument that can dissect and then repurpose the words of others.

IMAL and I agree! (0)

Anonymous Coward | more than 5 years ago | (#27878609)

IMAL and I agree!

It isn't magic, the state bar associations want to protect their monopoly with things like bar exams. (I am a member of the bar in Florida).

Re:Why not? (1)

TaoPhoenix (980487) | more than 5 years ago | (#27882559)

Why is the acronym necessary at all? We're all "just posters" unless positively identified with a stronger qualification. Every post is Caveat Lector, all the way from Rick to the just-barely-wrong posts.

It's a scary tossup between the self-deprecation, and the Freudian sight-gag. If I had to pin it down, I'd blame Nixon's "I Am Not A Crook".

Supreme-Court Cases for the Law Blogs (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#27876317)

This session of the Supreme Court will address 2 important cases. The 1st case is the reverse discrimination [latimes.com] endured by the European-American and Hispanic firefighters in the city of New Haven, Connecticut. The city gave a fair, objective written test to all firefighters seeking promotion. The firefighters who received the highest scores would receive promotions. Well, none of the African-Americans received a sufficiently high score. Because the test did not produce the right skin color, African-American leaders condemned the test and threatened the city with unspecified (possibly violent) action. So, the city canceled the results of the test. The Supreme Court should uphold the results of the test and should condemn the African-Americans.

The 2nd case facing the Court is the outdated parts of the Voting Rights Act. The Court should completely invalidate the entire Voting Rights Act. In both the Democratic primary and the general election, roughly 95% of African-Americans voted for Barack Hussein Obama due solely to the color of his skin. Clearly, the racism is coming almost entirely from the African-American community. The racism is not coming from either the European-American or Japanese-American community. So, the Voting Rights Act is unnecessary.

Re:So instead... (1)

aoheno (645574) | more than 5 years ago | (#27877579)

.. the law lobby will try to make it illegal for the "proles" to discuss case law.

That includes lawyers, politicians (who are lawyers), lobbyists (who are lawyers), judges (who are lawyers), district attorneys (who are lawyers), doctors (who try to become lawyers when medicine exhausts them), special interests (who hire lawyers), as well as regulators and law enforcement (who do the bidding of lawyers).

That leaves the rest of us at the mercy of natural selection instead of creationism.

Blogging Is Disposable, Leave It as Such (5, Insightful)

eldavojohn (898314) | more than 5 years ago | (#27875825)

I haven't read all of the 39 pages of this report but from what I gather, I don't see why this should be any different than scientific blogging (or, in pre-internet terms, armchair science).

Example: I read Bryan William Jones' blog [utah.edu] . It sometimes has scientific topics although rarely anything new. Let's say Dr. Jones makes some important discovery in a field he is not an expert in ... like bird behavior. And it's a significant contribution to that field. Maybe he realizes what he's discovered and maybe he doesn't know the intricacies of bird behavior so he blogs about it.

Is this a peer reviewed published piece of research? No. Is it important to the field? It might be. Should he get credit? Yes. Should bird behaviorists be required to read every blog on the internet looking for a breakthrough? No. Could it go unnoticed? Yes. Will this happen often? Highly unlikely. Will Dr. Jones rare footage of the endangered African Upside-down tufted titmouse's in flight mating dance be a hit to the general public who like little birdies? Probably.

I see lawyering in a similar light. You expect the laywers and judges involved in a case to be completely on top of everything and knowledgable about everything (try to suppress laughter, please). But of course someone like Groklaw's PJ could bust out a piece of work putting more of the puzzle together than any of the inept dinosaurs running the show. Similar questions and answers may follow this scenario as in the case of the blogging scientist. Most importantly, that this position may be popular with the public but it's not a part of the case unless someone involved takes note and makes it so and puts it into the spotlight (or Bird Behavioral Journal in the former example).

That said, there is one serious flaw in this analogy. Science is usually correct or wrong. And usually easily decided (upon reflection, perhaps I should have used something more hotly contested like quantum theory instead of a bird dance). Law, as we all know here, is not only many shades of gray but also something that many people on the internet get emotional about (which is a good thing) and think they are experts in (which is a bad thing). I have not read the legal minutiae of my state or even country. I know the popular things and I extrapolate on them--almost always erroneously.

In short, I would opine that it would be a violation of free speech to outlaw it and dangerous if not stupid to make it legally important. There is a reason for the BAR exam. If you have not passed that, you probably just want to be a citizen on a soapbox instead of a legal target.

Blogging is by and large a disposable medium that can be morphed into important things by the appropriate people. It is satisfying to express one's ideas like I am doing right now. Leave it that way.

Re:Blogging Is Disposable, Leave It as Such (0)

Sir_Lewk (967686) | more than 5 years ago | (#27876085)

There is a reason for the BAR exam.

Yeah, we can't have every Tom, Dick, and Harry running around with Browning Automatic Rifles!

Neutrality in Liberalism (5, Insightful)

Alaren (682568) | more than 5 years ago | (#27876097)

You make some good points, but you focus on the problem from the perspective of the average blogger--while the Article is about blogging from the perspective of the courts.

The reason this is seen as a problem is that liberalism (small "l," brought to us courtesy of Hobbes and Locke) originated as a Natural Law philosophy, and it was assumed that decisions were best made by "neutral arbiters." Appellate judges or clerks or in some cases attorneys who read blogs may be (gasp!) influenced by viewpoints that are not rooted in the record.

Of course, this happens all the time, in other ways. Positivism has largely supplanted naturalism in our jurisprudence, but we've never adapted our court systems accordingly (for various reasons, not all of them bad). Contemporary western philosophy--though, importantly, not contemporary lay thought on legal practice--scoffs at the idea of a "neutral arbiter."

This doesn't mean judges should actively seek input from every available source--that would be disaster. The fact that "neutral" is impossible doesn't mean it isn't a worthy goal, and the judiciary should pursue it so far as they're able without becoming so neutral as to stop caring about justice.

But that's the real question here--not whether your average blogger can write legally important things, but whether an appellate judge should be reading case material that isn't in the record. The obvious answer is "no," so the question then becomes, "how do we make this happen in an information age?" Because it would seem silly to tell a SCOTUS justice, "you can no longer read the Volokh conspiracy, just in case something relevant is said" or whatever; after all, judges will have read "The Tempting of America" and "There's No Such Thing As Free Speech" and everything in-between, and these will doubtless influence them even though they don't directly address particular cases (usually). But it would also be illegal to tell Professor Volokh & crew, "you can no longer blog because you're attorneys."

It's an interesting problem and an interesting article, but the tech angle is strictly utilitarian; this is a problem of legal ethics.

Re:Neutrality in Liberalism (0)

Anonymous Coward | more than 5 years ago | (#27876401)

Positivism has largely supplanted naturalism in our jurisprudence ...

Whoever cannot see that has no place in this conversation.

Re:Neutrality in Liberalism (0)

Anonymous Coward | more than 5 years ago | (#27878665)

I see no problem in real-world Judges "being influenced" by outside sources.

This proposal to ban legal blogging is analogous to banning judges from reading legal blogs, IMO.

Are we to ban judges from reading legal books? Are we to ban judges from listening to legal radio shows? Are we to ban judges from watching Judge Judy?

The measure of a Just judge lies in his or her ability to weigh the evidence in a case. This absolutely is done within the framework of the judge's past, present, and future experiences, including all outside influences.

Re:Neutrality in Liberalism (1)

Anonymous Cowpat (788193) | more than 5 years ago | (#27880787)

but whether an appellate judge should be reading case material that isn't in the record. The obvious answer is "no,"

I disagree - judges should have any information which is both relevant and true (or probably true with a quantification of 'probably' and reasons for that) at their disposal.
Justice is not served by handing judges the opportunity to make wrong decisions because of wilful ignorance of objective reality.

For instance, say there's a dispute over a car accident (got to get a car in here somewhere), which hinges on the layout of a junction. One party makes a submission to the court asserting some information about the junction. This information is wrong. The other party does not, for whatever reason, contest it. The judge happens to drive through this junction at some point over a weekend (or goes there deliberately - whatever); should the wrong information supplied by the first party stand because it wasn't contested, or be thrown out because the judge now knows that it was wrong?

How about another example - a judge issues a temporary injunction requiring a website to be taken down for the duration of proceedings (the defendant's website). Some reasonable time later, the plantiff complains to the judge that the website hasn't been taken down. The defendant says that it has. Should the judge:

  • Take the plantiff's word for it and smack the defendant
  • Take the defendants word for it and censure the plantiff
  • Let the two of them bicker about it for a few weeks in a side-trial
  • Type the URL into a web browser and find out whether it's up or not

It seems obvious to me that the latter is far preferable - whether the website is still up is an objective fact, and getting facts from two parties who both have an interest in distorting them, whilst deliberately refraining from finding out yourself seems irresponsible.
In the real world, however, the latter is the one course that the judge is NOT meant to take.

To make up some numbers:
Let's say that there are 10 wrong decisions. It we don't allow judges to use information from outside, then all those decisions will continue to be wrong. If we do allow them to use information form outside, then one of those decisions will no longer be wrong (but it'll be down to chance as to which that one is). The present system seems to think that it would serve justice better if all 10 wrong decisions stood, than one person, who would otherwise have got a wrong decision, got a right decision due to chance.

Re:Neutrality in Liberalism (1)

AndersOSU (873247) | more than 5 years ago | (#27882199)

no way.

The reason the material a judge gets to see is so tightly controlled is because the legal system has spent ~1000 years figuring out how to make sure that information is credible. If you're going to let a judge go off and conduct his own investigation the big problem you're going to run into is astroturfing.

Let's talk about that car accident - the judge goes online and finds your flickr account and sees some photos that clearly indicate the accident wasn't your fault. Now, were those photos genuine, staged, or photoshopped? In a court room you are sworn to tell the truth, and your adversary can bring in expert witnesses to question the validity of your evidence. On Flickr, you can put up whatever the hell you want - and the judge isn't qualified to determine the appropriateness of that information.

The reason we have an adversarial legal system is so that each side can put their evidence on the table and argue about what it means.

Re:Blogging Is Disposable, Leave It as Such (0)

Anonymous Coward | more than 5 years ago | (#27876807)

Man, that's a long winded post just to say "titmouse."

Lack of ties to the establishment (2, Insightful)

mc1138 (718275) | more than 5 years ago | (#27875855)

While this isn't the case for all blogs, there are a vast amount that aren't tied into sponsors, or wheels inside wheels that would prevent them for really exposing activities as such. There are too many cautious media moguls out there that don't want to hurt their base that news because a glossed over sort of event. People are afraid to try and expose something and be wrong, ie Dan Rather and the Bush Vietnam debacle. Yes its good to verify information, but at the same time sometimes one needs to have a little guts when trying to expose the truth.

absurd (2, Insightful)

Anonymous Coward | more than 5 years ago | (#27875885)

This is absurd. Supreme Court Justices are allowed to do their own research. Traditionally, this has included everything from cases (even cases from foreign jurisdictions) to law review articles. I don't think that anyone can pretend that law review articles have never taken sides in a Supreme Court controversy.

Why should blogs be treated any differently? I see no reason. I suspect this author wants to take active steps to maintain the influence of law reviews. It's not terribly surprising. The influence of law reviews has been on the decline for *years*.

Re:absurd (1)

guruevi (827432) | more than 5 years ago | (#27877241)

Because sometimes these blogs put difficult stuff in a plain language and express an opinion about it (and others may comment on the stupidity of it) and some legal types (read: RIAA, patent lawyers, ...) don't like that.

Wouldn't it be great if judges would include 'expert' advice from Slashdot or tech columnists when ruling on certain cases. Absurdities like the DMCA, most software patents and the RIAA cases would hardly be ruled favorably for.

Re:absurd (1)

j_w_d (114171) | more than 5 years ago | (#27880507)

Just accord such blogs a generalized Amicus curiae status.

Novelty overstated. (3, Insightful)

fuzzyfuzzyfungus (1223518) | more than 5 years ago | (#27875949)

I'm not sure that the use of blogs is different in anything but(possibly) degree from what has happened since pretty much the beginning of law.

It is (barring the replacement of statutes with strong-AI lawbots) impossible to write law that is self interpreting. Interpretation is inevitable. And, given the way humans are wired, culture and people outside the case writing about law, legal theory, and the case itself, will inevitably influence that interpretation.

Blogs are different than law journals, in that they aren't subject to peer review or anything(though, a lot of law blogs are published under real names, and putting your reputation on the line has an effect); but they are rather similar to other sources of input on lawyers and judges(half remembered newspaper clips, life experiences, conversations with colleagues and friends, and so forth). Blogs widen the circle of informal discourse a bit, just as email has a broader reach than snail mail; but it doesn't strike me as a genuinely novel development.

For that reason(and because I'm leery of interference with speech in general) the notion of restricting blogs seems both absurd and dangerous. Obviously, being on the internet doesn't free you from the usual rules of confidentiality, good taste, and so forth; but it is no more dangerous than other venues of informal discourse, which aren't restricted.

Re:Novelty overstated. (1)

Zerth (26112) | more than 5 years ago | (#27877155)

Really, is a blog in this case that much different than somebody handing out pamphlets near the courthouse? (other than geographical availability) If the newspaper had found out the fact from an intern with a law hobby instead of a blog, would much have changed?

This is just another facet on "how can/should judges be influenced", which has been discussed for quite some time. The only really new part is that obscure facts are less likely to fall through the cracks, but the same would happen if there weren't a time constriction on the courts.

The Standford Law Review? (0)

Anonymous Coward | more than 5 years ago | (#27876057)

Is that kind of like having an MBA from Harfurd?

Blog bad, European Courts good? (0)

Anonymous Coward | more than 5 years ago | (#27876069)

So, it's suggested that they should NOT consider legal opinions on well established legal blogs, but yet those lefties in there look to European courts to inform their decisions and that is ok?

Do we forbid judges from reading newspapers? No. (5, Insightful)

dwheeler (321049) | more than 5 years ago | (#27876079)

The idea that "judges must not read blogs" is absurdly extreme. We don't forbid judges from reading newspapers; why are bloggers suddenly called out for special mistreatment? It's true that we don't let juries look at stuff because they're not familiar with the details of what is or is not permissible evidence, but judges do have such training.

In fact, the article opens with Kennedy v. Louisiana, where blogging was a tremendous help. In this case, the Supreme Court's ruling was based on wrong information, and the bloggers pointed this mistake out. Kudos to the authors for being brave enough to point to this as an example. In any case, it shows that bloggers can have a very positive effect on court outcomes, by calling attention to critical mistakes in the court's information.

I want to see people more involved in political discourse. If they know that their discussions can't possibly have any effect, then they're less likely to have such discourse. Heck, I think that's why we have such low voter turnout... too many people think "my vote can't make any difference".

I do agree that there's a risk of hearing more of one side than another, but the direct presentations to judges along with research that the judges themselves do should help counter that. The other extremes seem worse than the problem they're trying to cure.

Re:Do we forbid judges from reading newspapers? No (2, Insightful)

Red Flayer (890720) | more than 5 years ago | (#27876217)

I do agree that there's a risk of hearing more of one side than another, but the direct presentations to judges along with research that the judges themselves do should help counter that. The other extremes seem worse than the problem they're trying to cure.

The problem is that the judge is then introducing "testimony" (for lack of a better word) into the case. And if that testimony helps one side, the other side does not have the chance to present information or analysis that is counter to the testimony.

Furthmore, deep pockets could easily outweigh good analysis. Farming blog posts in support of your side of a case should have no bearing on the outcome of an appeal; unfortunately, that may become a real issue. It's simply the court of public opinion, except digital -- and quite possibly, easier to manipulate than general public opinion.

Re:Do we forbid judges from reading newspapers? No (1)

maxume (22995) | more than 5 years ago | (#27876605)

I don't think it is that big a problem. Ideally, judges are chosen because they demonstrate a history of fairness, not because they are a blank slate. If a judge can reasonably set aside his life experience, he can reasonably be expected to set aside (or just ignore) information and opinions about a case (I find it reasonable to expect a judge to ignore poorly and weakly sourced information).

Re:Do we forbid judges from reading newspapers? No (1)

Quantum Sort (1549723) | more than 5 years ago | (#27876373)

I agree because the internet has become the greatest tool that average citizens have to participate in the democratic process. To restrict their free speech is a restriction on the power of citizens to effect change on their government. Free speech is a cornerstone of America, and should not be forfeited due to a supposed "clouding" of a judge's final bottom-line.

Re:Do we forbid judges from reading newspapers? No (0)

Anonymous Coward | more than 5 years ago | (#27876601)

Wow, someone using effect as a verb correctly!

It is pretty sad how few know when to do this, my wife had a social work textbook entitled "Affecting Change"; I cringe every time I see it.

Oh and http://xkcd.com/326/

Re:Do we forbid judges from reading newspapers? No (1)

Endo13 (1000782) | more than 5 years ago | (#27877913)

Did you actually read the textbook? If not, how do you know that it might not actually be about affecting change? It is possible to change change you know. Maybe someone should write a textbook about effecting change about affecting change.

The second Seal is broken! (1)

onkelonkel (560274) | more than 5 years ago | (#27878927)

Two days ago someone used both lose and loose correctly in a post. Today it was effect. If I see someone use FUD to mean "a statement (which may be true) designed to cause Fear, Uncertainty and Doubt" rather than "any statement which is untrue or I believe is untrue" then I will know that the End of Days is at hand.

Re:Do we forbid judges from reading newspapers? No (1)

mangu (126918) | more than 5 years ago | (#27876663)

In fact, the article opens with Kennedy v. Louisiana, where blogging was a tremendous help. In this case, the Supreme Court's ruling was based on wrong information, and the bloggers pointed this mistake out.

What if that mistake were in the personal interest of the blogger? How can one be sure he didn't omit some crucial detail? A court of law is supposed to be neutral with both sides having equal access. If the judge reads one blog, shouldn't he read *all* of the millions of blogs on the internet?

Of course, judges are trained in evaluating testimony and all that, but even then it's not good to let an outside opinion influence the judge's mind in any way. If an attorney thinks a blog is important to the matter, he's free to quote from that blog in his statements in court. It just should be presented in such a way that both parts are aware of the arguments and allowed to present counterpoints.

Lawyers often read a judge's past decisions to understand better that judge's thinking process, that's part of the game. It wouldn't be fair to let that thinking process change in an unknown way during the trial.

I don't see this as a question of freedom of speech because everyone is free to speak but no one is forced to listen. I think judges should not read any external opinion on any case during the course of a trial, and that includes newspapers and magazines, too.

Re:Do we forbid judges from reading newspapers? No (1)

AndersOSU (873247) | more than 5 years ago | (#27876813)

We don't forbid judges from reading newspapers

Actually, according to the article, we do:

the judicial rule and its comments broadly instruct judges and their clerks not to gather a variety of types of information, some of which might well be published. The model rule states that a judge âoeshall not investigate facts in a matter independently...

...if a judge wishes to avail himself or herself of the advice of a disinterested legal expert regarding âoethe law applicable to a proceeding,â the Judicial Code declares that the parties in the case must receive notice and an opportunity to respond. Judges are clearly not supposed to seek legal analysis tailored to the case from outside chambers without providing procedural protections to the parties.â

If this is a problem, and I grant that it could be, it seems to me the only reasonable requirement would be to restrict the material the judge is ethically allowed to gather.

I don't see the point (4, Insightful)

Locke2005 (849178) | more than 5 years ago | (#27876083)

Why should a blog be treated any differently than an amicus curiae [wikipedia.org] brief? People are entitled to have and express their opinions, and judges have the right to not read them. Personally, I think crowdsourcing legal arguments would make for better law; there would be fewer missed points in arguments, and therefore fewer bad precedents. Finally, I don't see how telling bloggers to STFU could be viewed as anything but a violation of the First Amendment. What may be valid is the blocking of jurors' access to blogs, as jurors aren't allowed access to any evidence not approved by the judge.

It is simple actually (1)

Shivetya (243324) | more than 5 years ago | (#27876525)

Newspapers, journalist (tv and print), and the those who taught them, have a lot invested in the current system. As such they strive to portray their columns as always without bias and to portray blogs as always biased. See, papers want us to believe that opinion is confined to the opinion page when it is clearly not. The easiest method available to any journalist to express their bias is by omission.

The real mud in the eye was then Dan Rather used obviously fake documents to smear then President George Bush right before the election for his second term. It was so blatant of an attempt to sway an election and so obviously fraudulent that the press (read anyone not a blog) didn't how to handle the response from the "blogosphere" other than to discredit individual bloggers and blogging as a whole. I am sure we can all remember the disparaging images that the old press try to conjure up in the minds of the average person as to what constituted a blogger. They tried to use an unsavory image to discredit facts that they did not like.

Summary, they will do whatever it takes to maintain their image and position. Blogs threaten them because the large number of blogs means the whole story will get out. You can slant a single site but not all of them. However papers have the advantage of captive audiences which blogs don't. The Old press needs to come to terms with the fact that the old methods will not work. You cannot have an agenda when every watch dog out there will call you on it. Either report it all factually or openly declare your bias (like MSNBC which is so shameful as to give credit to blogs becoming a real force).

Re:It is simple actually (1)

Locke2005 (849178) | more than 5 years ago | (#27877645)

Newspapers, journalist (tv and print), and the those who taught them, have a lot invested in the current system. As such they strive to portray their columns as always without bias and to portray blogs as always biased. Absolutely. In fact, Fox News' slogan is "Fair and Balanced!" Aw shit... I can't say that with a straight face! As Jon Stewart said, they do report two sides to every issue -- both Bush's and Cheney's!

I agree that everyone has a bias, and I always attempt to factor that bias in whenever I listen to them. Sure, it would be helpful if they would go ahead and admit that bias to make it easier to evaluate what they are saying, but that's not how the game is played. It appears to me that outfits like Al Jazeera, which I would expect to have a huge bias, due a better job of sticking to principles of journalistic integrity than the huge media corporations like Murdoch's.

Traditional journalism and investigative reporting are dead. They sealed their own fate when they decided entertainment was more important than fact checking. This does leave a vacuum now where it is harder than ever to know what to believe, and the "echo chamber" effect certainly doesn't help. But surely the internet at least has the potential for implementing some sort of trust algorithm, or at least for democratizing what is accepted as truth.

Re:I don't see the point (1)

Nematode (197503) | more than 5 years ago | (#27876651)

The major difference with amicus briefs is that those are filed on the record, by identified parties, with copies delivered to all the litigants. If something in the brief is false, inaccurate, or misleading - or even just arguable - it can be argued and/or reply-briefed by a party who disputes it.

It's the basic difference between adversarial and inquisitorial justice systems. Judges reading blogs about pending cases is blurring that line.
Of course, it doesn't follow that preventing blogging by lawyers is the solution.

 

Re:I don't see the point (2, Insightful)

AndersOSU (873247) | more than 5 years ago | (#27876847)

The argument is that if blogs are available to the judge, they shouldn't be treated differently from amicus briefs - who's timing, rigor, and content are very tightly controlled, and an opportunity to respond is presented - unlike blog posts.

Bloggers (0)

Anonymous Coward | more than 5 years ago | (#27876109)

Compared to some AMJur articles I've read, I'll take Wikipedia or a blog anyday.

Huh? (1)

Locke2005 (849178) | more than 5 years ago | (#27876129)

members of the Court and their staff will have to refrain from reading any blog post relating to a pending case, no matter who it is written by. I sincerely doubt that someone can progress to the level of appointment to the supreme court without having learned to recognize bullshit when they see it, so I don't see the rationale for this.

Re:Huh? (1)

Nematode (197503) | more than 5 years ago | (#27876745)

It's not that judges and clerks can't "recognize bullshit," it's that it's not their job in an adversarial system to do so - it's up to the parties. Reading assertions of fact or law on a blog can be problematic. The judge might read a fact that was specifically excluded from evidence, on any number of grounds. The judge might read a fact that is disputed, wrong, or even untrue, without knowing that it's untrue. But again, in an adversarial system, the parties are entitled to know what evidence is presented to the trier of fact, and are obligated to make their own cases.

A judge might read an assertion of law on a blog, but not know that there was a subsequent case 3 years later calling the validity of the assertion into question, or overturning it. Judges do not, and should not be expected to, have the entire text of every opinion in their jurisdiction memorized verbatim, and cases often turn on who digs deeply enough to find the precedent closest on point. Again, blogging can help the process - but their use by anyone involved in a pending case should be harmonized with the existing rules of our adversarial system.

Re:Huh? (1)

Locke2005 (849178) | more than 5 years ago | (#27877423)

The judge might read a fact that was specifically excluded from evidence, on any number of grounds. I was under the impression that it was the judge that decided what should be excluded from evidence in the first place.

Yes, it is an adversarial system. Unless the blogger is committing fraud, anything that a judge might read in a blog is an argument that should have been put forth by one side or the other. (You don't think lawyers ever cite cases that has been overturned by subsequent case law?) I do admit that there is a problem in that bloggers aren't bound by the same rules of ethics as lawyers, but I believe the average blogger is still a lot more truthful than the worst lawyer. Take Jack Thompson for example -- he was allowed to spout bullshit in court for years before they finally disbarred him. I suspect judges reaching a consensus on which blogs they should simply ignore would by much more swift then bar associations (a trade guild designed to protect lawyers) reaching a consensus to silence a bad lawyer.

Re:Huh? (0)

Anonymous Coward | more than 5 years ago | (#27877451)

Judges are allowed to do their own legal research. Excluding blogs from that research is arbitrary and stupid. It is not uncommon for an important piece of precedent to be dug up by a Judge's young law clerk. It is not even very uncommon for that same piece of precedent to be completely overlooked by the lawyers on the case. The Judge can still use it even if the lawyers didn't.

As for facts, Judges deal with this issue all the time. Lawyers and Judges are trained on dealing with facts from their very first semester in law school. If I Judge lets a fact from a blog come in, then our legal system has serious problems that can't be fixed simply by banning Judges from reading blogs.

Re:Huh? (1)

PPH (736903) | more than 5 years ago | (#27878391)

It's not that judges and clerks can't "recognize bullshit," it's that it's not their job in an adversarial system to do so - it's up to the parties.

But that's a large part of what is wrong with our judicial system today. The adversarial part. Its designed to let the opposing sides 'game' a trial by filtering the evidence and testimony that will be presented. A system where each side would present their case and then the judge or jury could request more information, expert testimony, etc. to clarify each position would be far superior to the situation we have now.

Granted, in the case of a jury, the presiding judge is far more qualified to understand the rules of evidence and differentiate between biased or just plan groundless assertions made in blogs. So there's a basis for instructing juries not to read the blogs, or other media. But the Supreme Court works in a somewhat different fashion, with justices raising questions with each party. I can see quite abit of value in having, possibly not the justices themselves, but their staff, read blogs or other submissions by various interested parties. This would have to be heavily filtered for bullsh*t and bias. But in the end, some bloggers with expertise in the field in question might raise some interesting questions that the justices need to pursue.

Re:Huh? (1)

Actually, I do RTFA (1058596) | more than 5 years ago | (#27881409)

The judge might read a fact that is disputed, wrong, or even untrue, without knowing that it's untrue. But again, in an adversarial system, the parties are entitled to know what evidence is presented to the trier of fact, and are obligated to make their own cases.

Well, a Supreme Court justice making a ruling on a Wikipedia entry would be bad. But SCOTUS examines the lawers. I believe that during motions, so do regular justices. So, the judge can bring in whatever outside information he wants without any negative effects, because the other side can still respond to it.

Re:Huh? (1)

Zordak (123132) | more than 5 years ago | (#27877577)

I sincerely doubt that someone can progress to the level of appointment to the supreme court without having learned to recognize bullshit when they see it.

You've obviously never ready any of Harry Blackmun's opinions.

Groklaw and PJ (0)

Anonymous Coward | more than 5 years ago | (#27876133)

PJ isn't only not an attorney, she's not a journalist, a nice person, a supporter of free speech, and certainly not a good person to be running Groklaw, even if she did "found" it.

Anyone who simply deletes posts that she disagrees with is doing Linux and open source a huge disservice. I'd love to see the community distance itself as far as possible from groklaw (and now that SCO is gone, Groklaw no longer has a purpose anyway).

Re:Groklaw and PJ (0)

Anonymous Coward | more than 5 years ago | (#27876727)

You don't like the way Groklaw is run, then don't visit the site. Pretty simple.

Re:Groklaw and PJ (1)

RobertLTux (260313) | more than 5 years ago | (#27878715)

Okay first off Pamela Jones was a paralegal (doing legal research and such. Second her Blog her rules
if you disagree with her and also break her rules yes your post will be deleted. If you are civil then you can in fact prove her wrong.

Oh btw the SCO thing is not quite done Novell is done the Bankruptcy is going chapter 7 the Novell appeal is a dead stick IBM is lighting up and the side acts are on hold pending IBM

Most of the real coverage now is focused on MicroSoft anyway

The life of the justices (5, Interesting)

Pig Hogger (10379) | more than 5 years ago | (#27876167)

I happen to socially hang around a supreme court justice, with whom I share a hobby.

In the course of their tenure, they have to carefully shield themselves from the opinion currents (socially, they will remain mostly in their family circles, and avoid big social venues), as they their job requires them to strictly adhere to the Constitution and the jurisprudence (where relevant). As a matter of course, they will avoid reading newspapers articles relating to "their" cases, and blogs naturally fall in this category.

Whatever discussions we had about his work have been kept generic and mundane, and with the utmost care not to reveal the inner legal workings of the cases; in short, nothing more than what is available to court observers.

No different than any other media (1)

cryfreedomlove (929828) | more than 5 years ago | (#27876171)

Should the judges turn off NPR whilst driving to work? Should the judges avoid watching TV? Should the judges stop reading newspapers? Should the judges not look at bumper stickers? Should the judges live alone?

Why are blogs special?

gho8o (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#27876203)

We need more blogging on the Texas Ballot case (2, Insightful)

erroneus (253617) | more than 5 years ago | (#27876603)

For once, the Libertarian Party truly had the Democratic and Republican parties over a barrel when they failed to file their candidates before the deadline in Texas. Neither Obama nor McCain should have been on the official ballots in Texas because they failed to meet the deadline for filing. With quite literally no legal explanation, the motion was denied. No reason for the denial was offered. It was just "no."

Had it been an independent or a third party, we know what the outcome would have been and there would have been explanations citing rule of law and procedure. It would be interesting to see if this judge had ruled on similar cases concerning ballots and the like and to have their outcomes compared. This is something a great blogger might be able to pull off.

We had to destroy the village in order to save it. (1)

MarkvW (1037596) | more than 5 years ago | (#27877037)

Some lawyers, especially judges and the lawyers hooked in with the various of bar associations, have a tendency to get very 'holier than thou' when it comes to the sanctity of the legal profession. They want to defend their ivory tower from incursions by the impure.

They are unwilling to accept that law is inherently a dynamic, vital profession, both noble and filthy. A Court isn't something that sits above the world in judgment; it's something that is intimately and directly a part of world as it actually happens.

Judges do not like to be scrutinized. For example, it is an absolute bitch to try to get records to make a statistical study of judges' sentencing decisions. They want to keep that information from you, because (a) they don't trust you with it; and (b) they are afraid of political fallout. They want to keep their ivory tower sacred for the priesthood.

And then there's the First Amendment. As much as Judges would like to, they can't screw very much with lawyers who blab too much. And why try, anybody can get a proxy to advocate online for them.

Censoring lawyer speech is both a constitutional minefield and a quixotic adventure. You can't draft effective regulations that satisfy the Constitution, and even if you could, you couldn't enforce them because clever lawyers would defeat the regulations by anonymous and proxy postings.

Judges just have to do the best they can, just like they always have.

The American Justice system is f'd up, like banks (1)

Nicolas MONNET (4727) | more than 5 years ago | (#27877061)

It's completely absurd. It's been twisted and distorted by two centuries of legalism to the point where it's not fulfilling its function anymore, and, just like the banking system, instead of providing a non productive but necessary service, it confiscates a significant part of the GDP to keep on keepin' on.
Take jury trial. Jury of peers, supposedly. Ok then, why are patent disputes handled by the same type of jury as a murder trial? There is something disturbing about companies making hundred of billions paying millions to top lawyers who can then basically have random people kidnapped into a courtroom to serve their litigation needs.
The amount of punitive damages towards individuals is also staggering. I see many stories, such as those involving RIAA vs individuals, where the latter are facing damages that would bankrupt many small businesses. This doesn't make any fucking sense. Just like 300 year prison terms -- what's the damn point? Don't these people realise that even the scariest murderers don't live that long? No, they don't rejuvenate by drinking the blood of their victims, Your Honor, that is F-I-C-T-I-O-N.
And the cost of getting justice is also staggerlingly high. When someone with deep enough pockets can basically out-lawyer any commoner, well, you know your revolution is over; there is a higher class and it doesn't have to obey the same rules.
You really need to take a look outside your country and see how it's done -- it's certainly not perfect anywhere, esp. not in mine, but it's not the massive clusterfuck I'm seeing over and over.

Re:The American Justice system is f'd up, like ban (0)

Anonymous Coward | more than 5 years ago | (#27878305)

Hi, civil jury trial rights are controlled by the seventh amendment. Blame the founding fathers, not the current legal system, and contact your representative if you want to try and change it.

In regards to punitive damages, for copyright they're not really punitive damages but statutory damages most the time. Here, blame congress for putting the damages provisions in the copyright act. Again, contact your rep, don't blame the lawyers who have to argue the statute they are given. As per punitive damages generally, 45 states allow them and the federal supreme court has tried to limit them to a reasonable multiple of actual damages. However, they are a jury question most the time so that pesky 7th amendment comes back up. Talk to you state rep about removing punitives if you don't like them.

In regards to the 300 year prison terms. What do you care? If they want to put a guy away forever, let them put some ridiculous number. I think your concern here doesn't make any practical sense.

As per teh cost of litigation. There is a tough balance in this regard. Make it really cheap to sue and you have nuisance suits all the time. Make it really expensive and no one can sue. There are fee shifting provisions for certain causes of action that can make it easier to bring suit because costs and fees get paid by the loser (like in England). Also, you have contingent fee agreements that allow access to the courts but have lawyers taking around 30%. There's a difficult balance beyond the simple fact that litigation is time consuming, may involve expert witnesses, and may have lots of discovery. You could remove some of the procedural protections to save time, but over the centuries the courts and legislatures have found the procedural hoops useful.

So if the American legal system is going to change we must look to the federal and local legislatures and possibly attempt a constitutional amendment. Also, the US system is so litigation happy because we lack the social safety nets many other countries enjoy (i.e. if I am injured and don't have medical insurance, my recovery comes from the person who injured me not from government medical care). Therefore, related to litigation reform will probably have to be massive changes in the social welfare system.

It's easy to mock the system from a distance, but each of your concerns has either policy reasons or entrenched law that is very painful to remove (e.g. that pesky constitution).

PJ not an attorney (1)

Bilbo (7015) | more than 5 years ago | (#27877351)

Haven't read the PA yet, but I think the point is that the *attorneys* themselves shouldn't be blogging. Someone like you or me, or PJ, should be able to read about a case and state our own opinions (Freedom of Speech and all that), but if you are directly involved in a case, you have to be very careful what you say, and to whom.

OK, OK, now I'll go and read the article....

vikas singhania (0)

Anonymous Coward | more than 5 years ago | (#27878423)

"A medication, medicines or drug is any substance or combination of substances which may be used in or administered to human beings or animals with a view to treating or preventing disease or to making a medical diagnosis. Commercial medications are produced by pharmaceutical companies and are often patented. Copies of former patented drugs are called generic drugs."

this defintion is base on european law which says: (a) Any substance or combination of substances presented as having properties for treating or preventing disease in human beings; or (b) Any substance or combination of substances which may be used in or administered to human beings either with a view to restoring, correcting or modifying physiological functions by exerting a pharmacological, immunological or metabolic action, or to making a medical diagnosis.

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