Litigating Against the Blogosphere
Many law bloggers refrain from openly criticizing other lawyers and decisions out of a sense of professional comity and because the when you critique someone on a blog, you are opening yourself up to criticism from the entire blogosphere. For most lawyers - even good ones - the stress of getting smacked down by the court is enough. There's no reason to add to this stress. (And there's also this issue [Volokh]: "if you write anything criticizing editing or proofreading, there will be a fault of some kind in what you have written.") Sort of an obvious point, but lawyers being conservative people (most) tend to be extra cautious in this regard. I admire law bloggers that can look past this and lay the unvarnished smackdown. Prof. Randazza at the Legal Satyricon is a good example of a law blogger that often does this, and for this reason (among others) his blog is very readable.
This "fear of the mob" is something that surely influences the tone law bloggers take. But I'm wondering how it may play into decisions about who and what to litigate. Increasingly, the blogosphere acts as a check against what is perceived as bad litigation, and rallies to the side of those that are perceived as needing help. The proliferation of law bloggers (and others who keep track of litigation) has resulted in a sort of blogospheric amicus. In the old days you file a case and unless it's high profile it doesn't see the light of day ever, or unless and until something newsworthy happens in the case. Today, courtesy of the blogosphere, regardless of where you file a lawsuit, it stands a chance of being scrutinized by a local blogger and depending on the interest level, becomes instant fodder for criticism by the blogosphere.
Think about the case of Public Citizen coming to the aid of Ronald J. Riley in his ongoing battle against the Dozier Law firm. [Techdirt] The chances of this happening 10 years ago? Slim to none.
As in days' past, in today's day and age, lawsuits have to pass the Rule 11 test in court. It seems like they have to pass the increasingly relevant blogospheric Rule 11 test as well. This seems particularly true of lawyers who are enforcing rights on the internet. The blogosphere tends to take a pretty skeptical view of this as a default position.


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