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 noveltythey are already capable of having a substantial impact on Supreme Court litigation. Events surrounding the recent decision in Kennedy v. Louisiana demonstrate 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 bloggingposting persuasive material about a pending case in the hopes of directly influencing the Court's decisions. Attorneys for parties and amid in cases before the Court already sometimes post arguments online about their cases shortly after oral argumentpotentially a crucial time in the Court's decision-making processand 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. The Note concludes that ex parte blogging threatens the impartial administration of justice and will systematically disadvantage some litigants. Thus, the legal profession should consider regulating ex parte blogging, despite the contributions that counsel for parties and amid might make to public discourse about constitutional and legal issues.