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Michael McConnell on Blogs and Scholarly Critiques of Judicial Opinions

Pepperdine hosted Justice Samuel Alito and Tenth Circuit Judge Michael McConnell.  (Via.)  Pepperdine filmed the discussion, which is available for viewing here.

Justice Alito and Judge McConnell discussed opinion writing.  After lamenting that academics do not provide objective analysis of opinions, instead seeking to push an agenda, McConnell said:

I think blogs are, in the legal area, beginning to provide [needed] commentary. 

There are very useful blogs ... on specific areas of the law where they look at and they comment upon decisions from district courts and courts of appeals.... In many cases, this is the best, most intelligent, most professional commentary and critique that we get.  I am grateful for that, and I think that's been an excellent development in the last several years.

I know for a fact that judges, or at least their law clerks, read critiques of judicial opinions.  Crime & Federalism has been cited in two federal district court opinions.  Priester v. Rich, 457 F. Supp. 2d 1369, 1375, f.n. 4 (S.D. Ga. 2006); Boxer X  v. Harris, 2007 U.S. Dist. LEXIS 45149, *5, f.n. 3 (S.D. Ga. 2007) unpublished).

When I blog about a case, I'll later see visitors from the uscourts.gov domain.  Judges (or their clerks) do seem to care about what others are saying about them.

A former Supreme Court law clerk told me that clerks are starved for feedback about opinions they helped write, and often will spend hours pouring over critiques of opinions. 

It is a good thing for the development of law that judges and clerks know that people are watching.  Will it revolutionize the law?  Doubtful.  Still, it never hurts to know that if you don't get it right, someone will let the world know.  Judges, like the rest of us, don't like to be proven wrong - especially in a public forum.  They also like to be praised, so we shouldn't always focus on the negative.

One of the only reasons I blog is because I'll often see hits from uscourts.gov for some of my past commentary on Section 1983.  I often think to myself: "Blogging these cases is pointless and depressing, since the law is becoming so pro-defendant. It just pisses me off.  Why continue this depressing endeavor? 

Then I say to myself: "Who knows: Maybe some plaintiff whose rights have been violated will benefit.  Maybe in some small way I can do some good? Judges might not listen.  But at least you at least have the judges' ears.  If you quit now, you won't even be relevant.

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