Social Media Law Student blog has a nice post titled “Can Blogs Influence the Supreme Court?” by Josh Camson. In this post, Josh reviews an article by Stanford Law student, Rachel C. Lee, titled Ex Parte Blogging: The Legal Ethics of Supreme Court Advocacy in the Internet Era.
Lawyers have been arguing their cases before the Supreme Court for over two centuries, while the phenomenon of legal blogs is perhaps a decade old. Yet legal blogs cannot be dismissed as merely a sideshow novelty—they are already capable of having a substantial impact on Supreme Court litigation.
Rachel based her argument on the 2008 decision in Kennedy v. Louisiana, 554 U.S. __, 129 S.Ct. 1, 171 L.Ed. 2d 932 (2008) and continues on saying that events surrounding this decision …
[d]emonstrate that blogs can both highlight errors in Court decisions and generate new arguments relevant to ongoing litigation. In addition, legal blogs create the opportunity for Supreme Court advocates to engage in ex parte blogging—posting persuasive material about a pending case in the hopes of directly influencing the Court’s decisions.
Attorneys for parties and amici in cases before the Court already sometimes post arguments online about their cases shortly after oral argument—potentially a crucial time in the Court’s decision-making process—and evidence suggests that the Justices and their clerks may well encounter some of these posts online. Yet no one has analyzed the ethical implications of this practice, or what its effects might be on different groups appearing before the Court. This Note examines the relationship between ex parte blogging and the traditional concepts of prejudicial publicity and ex parte communications.
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