Corporate Governance

Law Faculty Blogs and Influence: The Case of Court Citations (Part 3)

By J. Robert Brown

We have been discussing the growing influence of law faculty blogs. Yesterday, we took a look at the number of citations of law blogs in law reviews. Today we look at the number of citations in court opinions, whether state or federal. As discussed in the paper, Of Empires, Independents, and Captives : Law Blogging, Law Scholarship, and Law School Rankings, I put together a list of approximately 130 law blogs and ran them through the Lexis-Nexis case file (state and federal). The search only included blogs sponsored by full time faculty (thereby excluding the law blog by Judge Posner, despite his adjunct status at Chicago) and blogs generically sponsored by law schools (Chicago, Georgetown, Houston, Louisville and Pittsburg have these types of blogs).

Below is a list of the nine faculty blogs that have been cited in state or federal opinions appearing in the Lexis-Nexis data base for state and federal cases. The searches were run on different days during early to mid-February 2008.

Sentencing Law and Policy ----- 28

Volokh Conspiracy ------------------- 3

ProfessorBainbridge ----------------- 3

Ideoblog ---------------------------------- 2

Prawfs Blawg -------------------------- 1

Legal Theory Blog -------------------- 1

LessigBlog ------------------------------ 1

Instapundit ------------------------------ 1

Immigration Law Prof Blog -------- 1

Patently O ------------------------------ 1

The Race to the Bottom ------------- 1

The total number of citations? 37.

In many respects, the number of citations is less impressive than those in law reviews. Most of the citations are, of course, a result of the impressive output by Doug Berman'sSentencing Blog, including the only law blog so far to be cited by the US Supreme Court. In a number of cases, the blog is cited because of primary materials posted on the cite (particularly for reference to a Memorandum from James B. Comey, Deputy Att'y Gen., to U.S. Attorneys on Authorization of Early Disposition Programs), although it is often cited because of substantive analysis. See Carrington v. United States, 503 F.3d 888, 902 n. 4 (9th Cir. 2007)("On this point, I agree with Professor Douglas A. Berman, who, providing commentary on this very case, responded to this concern by suggesting that it represents, as Justice Brennan once put it, a 'fear [of] too much justice.'").

Three of the citations above are a result of a single case, Batzel v. Smith, 351 F.3d 904 (9th Cir. 2003), which merely mentioned "a few popular and respected legal blogs" including Instapundit, Lessig and the Volokh Conspiracy. In addition on court cited The Volokh Conspiracy as authority for the lyrics tof Happy Together, a song by the Turtles. See Suboh v. Borgioli, 298 F. Supp. 2d 192 (D. Mass. 2004).

Perhaps one of the most interesting examples of blog use concerns citations in the Delaware Chancery Court, the source of most case law addressing corporate governance. This court is responsible for six of the citations (three by Steve Bainbridge, (Trenwick Am. Litig. Trust v. Ernst & Young, L.L.P., 906 A.2d 168, Desimone v. Barrows, 924 A.2d 908, and In re Tyson Foods, 919 A.2d 563), two by Larry Ribstein (Desimone and Tyson), and one citation to Theracetothebottom,Melzer v. CNET), with two members of the bench responsible for all of them (Vice Chancellor Strine and Chancellor Chandler).  These citations suggest that the members of the Chancery Court regularly read these blogs. 

The modest output is no big surprise.  As we have mentioned, blog posts are notoriously difficult to find.  A good number of the current set of citations probably occur because particular judges read particular blogs and occasionally cite them.  The number will increase exponentially, however, when judges who do not read the blogs regularly can nonetheless find posts that support statements or propositions that they want to make in an opinion.  For this to occur, there will need to be significant changes in the method of searching for and retrieving law blog posts.  We will talk about that in a later post. 

Full post as published by The Race to the Bottom on February 22, 2008 (boomark / email).