When I saw this tweet last night, my first thought was that I’ve clearly been blogging about the wrong things.
Federal Judge orders Google/Oracle to disclose their paid journos & bloggers by noon 8/17: j.mp/S13ITe Crikey!— Ernest Svenson (@ernieattorney) August 7, 2012
This order in the Google/Oracle trial (( If you were attended my talk at the UT appellate CLE, you heard a little about the Google/Oracle case. )) reaches from the legal scholarship (“treatises, articles”) all the way to the blogosphere or other commentary online. It requires the parties — not the reporters or scholars — to disclose any payments they have made by next Friday.
For an appellate lawyer, what’s especially interesting is the reason the judge gave for this order:
the disclosure required by this order would be of use on appeal or any remand to make clear whether any treatise, article, commentary or analysis on the issues posed by this case are possibly influenced by financial relationships to the parties or counsel.
In effect, Judge Alsup is asking the parties to make the same kind of disclosures about paying commentators outside the courtroom as would be needed if those same commentators had filed a more formal amicus brief.
In federal appellate courts, a potential amicus filer is required to disclose whether the brief has been paid for by anyone else, including one of the parties. (( Fed. R. App. P. 29(c)(5): requiring “a statement that indicates whether: … (B) a party or party’s counsel contributed money that was intended to fund preparing or submitting the brief;…” The rule also requires disclosure if counsel for one of the parties contributed time instead of money (by writing part of the brief) or whether any other outside group has contributed. The U.S. Supreme Court has a similar disclosure requirement. )) A similar rule holds in Texas appellate courts, which require amicus briefs to “disclose the source of any fee paid or to be paid.” Tex. R. App. P. 11(c).
This idea of treating the web of legal scholarship as a giant amicus brief is new to me, and I’m still digesting it.
The reality is that judges can’t sequester themselves away from all commentary about the legal issues in a case — good legal research, after all, would ask appellate court staff to look through recent publications about a cutting-edge legal issue while working on an opinion. And given the choice, I’d much rather have a court that is reading too much than a court that deliberately tries not to learn about the subject. (( See also: My talk at the UT appellate CLE, where I discussed how Judge Alsup had, during the Google/Oracle trial, learned enough about the Java programming language to really press counsel for Oracle on whether a small subroutine deserved copyright protection. ))
I can see how parties would complain, if they saw this sort of effort as general public relations — but when carried out through sock puppets or shills, the grounds for complaint seem more tenuous. (( And if they weren’t trying to influence the court’s view, they might be asked whose view they wanted to influence. If one of the foreseeable groups of readers is “investors,” an angry judge could be the least of their problems. )) And I can absolutely see why legal scholarship (and the willingness of courts to rely on it) might be seriously damaged if litigants were seen as paying for favorable commentary.
Judge Alsup’s order noted that he had become concerned that payments had been made here. I’ll be curious to see whether the parties comply — or whether they try to field a First Amendment argument to oppose the order. (( So far as I can tell, the interest implicated is really about anonymity of the person funding the speech rather than any effect on the message of the speech. As anyone who’s ever read a campaign-finance case will tell you, that complicates things. ))
Added: After posting this, I came across this article by Tim Lee of Ars Technica. It conveys the thoughts of some other lawyers, including the observation that this resembles amicus practice.