Yesterday, in Harper v. Poway Unified School District, ___ F.3d ___ (9th Cir. July 31, 2006) (O'Scannlain, J., dissenting), a group of four Ninth Circuit judges cited the Volokh Conspiracy in their opinion dissenting from the denial of en banc rehearing. Professor Volokh criticized the original Ninth Circuit decision in his blog, and the dissenting opinion cites his blog post as support for its position on the merits. (Slip op. at 8549 (citing Eugene Volokh, Sorry, Your Viewpoint Is Excluded from First Amendment Protection, April 20, 2006, http://volokh.com/posts/1145577196.shtml).) [Hat Tip: California Appellate Report.]
This development is particularly timely, coming within a week after the publication of two articles addressing the ramifications of judicial reliance on law blogs. Lyle Denniston of SCOTUSblog observed that "[t]he hallmark of true influence – citation as authoritative in case law or legal briefs – is beginning to develop, but so far can hardly be called frequent, or common." Lyle Denniston, "Law Blogs: The Search for Legitmacy," 11 Nexus Law Journal 17, 21 (2006). Nonetheless, "operating on the assumption that the Court has become Internet-savvy, ... outside advocacy by blogs is likely to grow more common, a kind of digital amici advocacy." Id. at 20; see also Howard Bashman, "Viewing Law Blogs as a Vast Amicus Brief," Law.com (July 24, 2006) ("When the legal blogosphere offers assistance in the form of insightful commentary about pending cases from law professors and lawyers with particular expertise in the subject matter under consideration, a judge's consultation of those blog posts is, in my view, just another form of permissible legal research.").
One notable thing about the Harper case in particular is that the original Ninth Circuit opinion was handed down on April 20, 2006, just over three months ago. No law review article criticizing the opinion could be written, submitted, edited and published in a traditional law review within that time frame. Professor Volokh's blog post, by contrast, was published within hours after the opinion was announced. Only a blog can be so timely.