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Thursday, May 07, 2009

Courts - Blogging about cases pending before the Supreme Court

From Howard Bashman's How Appealing this morning:

In the April 2009 issue of the Stanford Law Review: Rachel C. Lee has an interesting note titled "Ex Parte Blogging: The Legal Ethics of Supreme Court Advocacy in the Internet Era."
The ILB has taken a look at the SLR note. Here is the summary:
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. Events surrounding the recent decision in Kennedy v. Louisiana demonstrate that blogs can both highlight errors in Court decisions and generate new arguments relevant to ongoing litigation. In addition, legal blogs create the opportunity for Supreme Court advocates to engage in ex parte blogging—posting persuasive material about a pending case in the hopes of directly influencing the Court’s decisions. Attorneys for parties and amici in cases before the Court already sometimes post arguments online about their cases shortly after oral argument— potentially a crucial time in the Court’s decision-making process—and evidence suggests that the Justices and their clerks may well encounter some of these posts online. Yet no one has analyzed the ethical implications of this practice, or what its effects might be on different groups appearing before the Court. This Note examines the relationship between ex parte blogging and the traditional concepts of prejudicial publicity and ex parte communications. The Note concludes that ex parte blogging threatens the impartial administration of justice and will systematically disadvantage some litigants. Thus, the legal profession should consider regulating ex parte blogging, despite the contributions that counsel for parties and amici might make to public discourse about constitutional and legal issues.
Oddly, the summary does not appear to encompass the option presented on page 36 of the paper:
Sometimes, the best response to troubling speech is for the audience to “avert[] their eyes.” If the Justices do not read ex parte blog posts, the impartiality of the justice system will be preserved. Although no one dictates rules to the nation’s highest court, it could undertake the task of ex parte regulation itself, either by subscribing to the Code of Judicial Conduct or by adopting internal practices to encourage adherence to a similar ex parte principle. Law clerks at the Court are already reputedly asked to sign a pledge of confidentiality, and surely the Justices have other expectations of their clerks’ conduct. Clarifying that deliberately viewing blog posts concerning pending cases is unacceptable in chambers—and announcing publicly that the Justices have done so, both to remove the incentive for advocates to post and also to reduce the public perception of unfairness—would be a simple and largely effective answer to the ex parte blogging problem. Such self-imposed discipline would also have the advantage that it could also extend more broadly to cover material from law reviews and newspapers as necessary, without triggering concerns about unconstitutional restrictions on speech.
Indiana's Supreme Court in 2008 adopted Ind. Code of Judicial Conduct Rule 2.9(C):
RULE 2.9: Ex Parte Communications * * *

(C) A judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed.

(D) A judge shall make reasonable efforts, including providing appropriate supervision, to ensure that this Rule is not violated by court staff, court officials, and others subject to the judge’s direction and control. * * *

Comment [6] The prohibition against a judge investigating the facts in a matter extends to information available in all mediums, including electronic.

Posted by Marcia Oddi on May 7, 2009 08:25 AM
Posted to Courts in general