"Roundtable Weighs In on Legal Blogs"

Thursday's National Law Journal had a detailed summary of a roundtable discussion called "Blogging, Scholarship and the Bench and Bar," which took place on September 17, 2007 at Santa Clara University School of Law. One of the panelists was Circuit Judge Michael Daly Hawkins of the United States Court of Appeals for the Ninth Circuit. He had some particularly interesting remarks about law blogs:

[Moderator]: Judge Hawkins, I wonder, as you value various kinds of legal scholarship, including that that arrives electronically to you, if you were not a judge, but a law school dean, knowing what you know about how valuable blogging is, would you try to encourage your faculty to blog?

Hawkins: We get all of our information off the Internet, Westlaw, Lexis, whatever; assemble it together and then produce the written product after that. We never crack those books. Consequently, my chambers has, other than the U.S. Code, has very few in it. I think it goes back, to answer your question directly, to the content. There is some blog content that is extraordinarily good. It's particularly helpful in my court, which covers the nine Western states.

....

[Moderator]: .... Does scholarship matter? What about from the bench and the bar? What do you think should matter about scholarship that's done by law faculty? Judge Hawkins?

Hawkins: Well, it depends upon the case, obviously. It can be very important. A lot of material -- written, published material -- flows across our desks as appellate judges. Some of it, I think, directed when it's widely known that your court's going to hear an interesting intellectual property case, like Grokster or Napster, or the recent case I sat on involving the administration's information-gathering tools. You never ask for it, but Professor X from Law School Y, says, well, I thought you might be interested in this topic, and that happens with blogs.

Every morning when I turn on my computer, our circuit librarian puts up a thing called New and Noteworthy, and it will have, from New York Times, Washington Post, [Los Angeles] Times, papers all across the country, with comments on cases that we've decided, or cases that are upcoming. But it's also interspersed with blogs, and it will have blog commentary on a case that's coming, or a case that's been decided. And not infrequently, when it's a comment such as the 9th Circuit's going to hear an issue about fair use and copyright protection, when you have somebody dig down to the bottom of that blog, it turns out that it's written or sponsored by someone who has an oar in the water on that very issue, so you have to be very careful about that. And I find that less so with standard law review material, although it does occur there also. But it's something you have to be careful about.

I wonder what Judge Hawkins means by "someone who has an oar in the water on that very issue." It's one thing for counsel of record in a pending case to blog (or write print articles) about that case. It's another, I think, for a practitioner who practices in a particular area of law to write about the hot issues that courts are addressing relating to his or her practice. Does such a practitioner "have an oar in the water" on the issue? From a certain perspective, the answer would be "yes." Should such a practitioner not blog or write about that topic? Not at all. Such practitioners are precisely the ones who should, and they do it all the time (both online and in print), because they are among most knowledgeable about the subject. So I suppose what Judge Hawkins might be saying is that, as a judge, he must be careful when reading any articles (or blog posts) written by practicing lawyers.

More commentary from Judge Hawkins is available at this link dated 2003, when he participated in How Appealing's
"20 Questions for the Appellate Judge" feature.

Comments

[Greg May]

Kimberly,

You're certianly right that lawyers who practice in a certain area are the ones that should write about it. I think Judge Hawkins was probably addressing lawyers falling somewhere in between the two examples you gave.

For example, since your "about" page describes you as a "plaintiffs' class action lawyer," I think Judge Hawkins would assume that your analysis is biased (whether it is or not) in favor of plaintiffs in UCL cases generally (though he wouldn't have to "dig down" very deep to find what you do). Likewise, some of the substantive law blogs, such as many of the ones put up by personal injury attorneys or employment attorneys who nearly or always represent one side of such disputes, would probably be presumed by Judge Hawkins to be written in less than objective fashion.

I suggest the ones he has to "dig down" to find are those who practice in a certain area of law who might be contemplating litigation or are in the early stages of it with issues similar to the one they are blogging about. They won't blog about their own case, but they will blog about issues that might influence their case. Again, this is easier for a lawyer who always represents the same side in a dispute (employers in employment cases, or criminal defense lawyers, e.g.).

Just my suspicion as to what Judge Hawkins was thinking.