Last week, David linked to Jay Brown's interesting post and article on the frequency with which blogs by legal academics are cited by other legal scholars. Professor Brown also tallies up how many times these law faculty blogs are cited by courts, state or federal. Thirteen blogs have been cited once, by any court in the U.S., presumably since the birth of blogs (the article that contains the data does not list any data parameters). Here are the blogs that have been cited more than once:
Rank # of Citations Blog (1) 45 Sentencing Law and Policy (43 fed; 2 state) (2) 8 Volokh Conspiracy (7 fed; 1 state) (3) 6 Patently 0 (6 fed) (4) 4 The Confrontation Blog (1 fed, 3 state) (5) 3 ProfessorBainbridge (3 state) (5) 3 Election Law Blog (2 fed; 1 State) (7) 2 Becker-Posner Blog (1 fed; 1 state) (7) 2 Credit Slips (1 fed; 1 state) (7) 2 Ideoblog (2 state)
As you can see, there's basically Sentencing Law and Policy, and the rest. In doing a few quick searches, I would posit that courts cite not only to Huffington Post considerably more than all law faculty blogs but one, but also to Sports Illustrated (and People, etc.).
Now, does this mean that I don't think that law faculty blogs have no sway on courts? Not at all. But, citations may not be a perfect proxy for influence. We know anecdotally that judges know what is being written on the blogs. But that doesn't mean that courts will need to cite to them.
Consider a case in front of an appellate court or trial court that writes opinions (federal, Delaware). The court's clerks read blogs, cite them in their memos. Or, the clerks read blogs, then go to the articles that are cited in a blog post and cite them. Or, the parties to the case cite to blog posts or the articles the posts cite in their briefs. The judges read the memos and briefs. When the judges write their opinions, they may never cite the blog posts. Courts cite to sources to show how their opinion follows a line of precedent. If a court goes out on a limb, the opinion may cite to a secondary source. When there are no articles because something is very new, the court may cite to a blog discussion, such as the great commentary on Sentencing Law and Policy during the Booker Revolution. But, if a blog post merely persuaded the judge to adopt one line of cases over another, or think about a certain precedent in a certain way, then the judge probably wouldn't cite anything. Judges don't have law review editors convincing them that no thought is original and every sentence requires a cite to something.
But legal scholars have these law review editors, which is why we need to cite to something, even a blog post. And that's why the numbers on the chart David reproduced last week, showing citations to blogs in legal scholarship, are so much higher. In fact, as I think I've told everyone I've ever met, a law review editor once told me I needed a citation for an assertion that was my own original assertion -- so I cited to my own blog post. This satisfied the law review editor. Judges don't have to do that.
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