The Citation of Blogs in Judicial Opinions
42 Pages Posted: 28 Oct 2009 Last revised: 17 Apr 2011
Date Written: October 27, 2009
This article reports the results of an exhaustive study examining the citation of blogs in judicial opinions. The article begins with an exploration of opinions citing blogs for their discussion of substantive legal issues. The unique status enjoyed by several boutique blogs is examined including the importance of Douglas Berman’s Sentencing Law and Policy blog in the wake of the Supreme Court’s Blakely and Booker decisions. The citation of blogs for factual information is discussed and the impact of these citations on litigants’ constitutional and procedural rights, the law of evidence, judicial ethics, and the judicial role in the common law adversarial system are explored.
Serious questions about the preservation of blogs cited in judicial opinions have yet to be answered. The way that blogs are cited in judicial opinions varies widely. Some judges do not provide enough information to accurately retrieve the blog post viewed by the court. Blog entries frequently change after they are posted. Some blog posts and entire blogs disappear without warning. There is currently no uniform approach to archiving or preserving blogs. Detailed statistics on the completeness and accuracy of citations to blogs in judicial opinions are provided. A set of best practices detailing when and how blogs should be cited is proposed. Rules on citing blogs in the recently released nineteenth edition of The Bluebook are examined. The Judicial Conference’s Guidelines on Citing To, Capturing, and Maintaining Internet Resources in Judicial Opinions are discussed and critiqued.
Keywords: blog, blogs, blawgs, citaiton studies, legal ressearch, legal authority, precedent, judges
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