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Wednesday, May 29, 2019

Fisher & Larsen on "Virtual Briefing": A Recommendation and Some Thoughts

Jeffrey Fisher and Allison Orr Larsen have posted their forthcoming article, "Virtual Briefing at the Supreme Court." (Thanks to Larry Solum for the pointer.) It's a fine and fascinating article, necessarily speculative but with interesting details. It's commendable in seeking to open a conversation about a new phenomenon--or a new variety of an old phenomenon, but one whose own features and potential problems deserve to be studied. I have a few thoughts below, but first here is the abstract:

The open secret of Supreme Court advocacy in a digital era is that there is a new way to argue to the Justices. Today’s Supreme Court arguments are developed online: They are dissected and explored in blog posts, fleshed out in popular podcasts, and analyzed and re-analyzed by experts who do not represent parties or have even filed a brief in the case at all. This “virtual briefing” (as we call it) is intended to influence the Justices and their law clerks but exists completely outside of traditional briefing rules. This article describes virtual briefing and makes a case that the key players inside the Court are listening. In particular, we show that the Twitter patterns of law clerks indicate they are paying close attention to producers of virtual briefing, and threads of these arguments (proposed and developed online) are starting to appear in the Court’s decisions.

We argue that this “crowdsourcing” dynamic to Supreme Court decision-making is at least worth a serious pause. There is surely merit to enlarging the dialogue around the issues the Supreme Court decides - maybe the best ideas will come from new voices in the crowd. But the confines of the adversarial process have been around for centuries, and there are significant risks that come with operating outside of it particularly given the unique nature and speed of online discussions. We analyze those risks in this article and suggest it is time to think hard about embracing virtual briefing -- truly assessing what can be gained and what will be lost along the way.

In general terms the article is of a piece with Larsen's other examinations of the real-world details and dilemmas of the amicus process. It is also, to my mind, related to the writing of folks like Carissa Byrne Hessick about the intersection between social media activity and the ethics of legal scholarship. It also relates to some of the thoughts I have offered on the ethics of legal scholarship and its connection to the strategic use of multiple "platforms" for various purposes. A useful contribution in its own right, Fisher and Larsen's article is also useful when viewed in that broader context.

A few observations. First, Fisher and Larsen are admirably open about the limits of the article and about the preliminary nature of its aim: not to make a hard recommendation, but to "lay out the problem and to trigger a conversation." They canvass some of the potential benefits as well as the potential risks of the phenomenon they discuss, and examine possible responses, including doing nothing. It should be evident that I am in sympathy with that goal. One potential response to the "open secret" they discuss is that nothing untoward is going on because nothing is going on (or nothing new, different, or coordinated). A contrary response is to "shrug" because it's an "open secret," so everyone knows what is happening already. I'm allergic to "open secrets" for these reasons. The failure to discuss them openly, candidly, and clearly (including, say, people who are deliberately attempting to influence the Court saying publicly saying that they're trying to do so, preferably in the same piece of writing) means they are either hard to verify and identify more precisely, and thus are subject to the usual rumor mill and possibly incorrect conventional wisdom, or that the most accurate knowledge about them will be confined to small and elite circles whose ability to police themselves shouldn't be assumed or trusted. As they write, whatever the right thing to do is, the phenomenon should at least be publicly recognized and discussed, rather than "allowing virtual briefing to occur unrecognized and without evaluation."

Second, Fisher and Larsen are candid about the difficulty of defining "virtual briefing." Where do social media posts, op-eds, blog posts, podcasts, and other forms of commentary fall? Within different platforms, what kinds of different types are there and which count as "virtual briefing:" "hot takes, "deep dives," disinterested analysis versus advocacy or propaganda, direct attempts to manipulate the justices' concern for their reputations, and so on? Which are better and which are worse, and why? I'm not sure I agree with all their analysis here, in part because it is not always clear whether a particular format or ostensible aim is undertaken in accordance with its own ostensible standards or involves a mixture of more questionable moves and motives. But I agree with. the basic point they make here: "We acknowledge that we are identifying a line-drawing problem, but wrestling with that line is preferable to just passively accepting a new normal without pausing to consider the consequences."

They are equally candid about the difficulty of proving that this phenomenon has any effect on the Court, or even reaches it. It seems clear, given the amount of time and effort devoted to it, that many people think this "virtual briefing" reaches the justices or their clerks, either directly or by its effect on news accounts and opinion-makers whose approval the justices may covet. (Although it's hard to say even this for sure. Much of the effort could be equally motivated by a desire to advance one's own fame, career, or sense of self or self-importance; usually it's surely a mix, given the high art to which American professionals have raised the idea of doing well while doing good.) And some of the evidence they offer is quite indirect. But some of that evidence is intriguing. Their survey of law clerks on Twitter is fascinating.  

Third, while the article is mostly concerned with the potential damage to the Court and the adversarial system, I would add my concern, as a member an academic discipline, about virtual briefing's consequences for legal scholars and scholarship. As I wrote in the article I link to above, one standard defense of such activities is that a platform is a platform, and that it hardly matters whether one places one's "lengthy and original analysis of a legal issue," to quote Erwin Chemerinsky, in an amicus brief or an article. (Although it seems to me that if an article and an amicus brief say and do the exact same thing, then one may be doing one or the other job wrong.) And a separate, not quite contrary defense is that no one thinks an op-ed or tweet is anything like a piece of legal scholarship, and that it's wholly possible for the writer to keep these activities in entirely separate categories. I do know people about whom I would say this seems true.

On the other hand, consider three factors: the very blurriness that Fisher and Larsen note above, the difficulty of defining what is and isn't a deliberate form of "virtual briefing"; the number of legal scholars who see all their work not as inevitably political but as deliberately political and "engaged"; and the blurriness of human nature, the extent to which the different activities we engage in subtly influence each other and cannot successfully be kept in separate, airtight mental containers. Even for those who don't mean to blur these lines (and surely some will), there may be some writers who, having undertaken to engage in "serious scholarship," more partisan tweets often influenced by short-term emotions and reactions, op-eds that fall in between, podcasts, and so on, find that work blurring together, and the goals and standards that are supposed to govern each activity becoming indistinct and crumbling. If they cannot recognize that this is happening, how can they act on this recognition? If they do recognize it, will they be willing to say or anything about it? I strongly doubt that virtual briefing has been good for the integrity and quality of legal scholarship or of the legal academy. If and as it becomes the undiscussed norm within and beyond elite circles, and/or an entree to those circles, it seems more likely that the phenomenon will metastasize than that it will become more restrained and self-disciplined. 

Fisher and Larsen conclude by examining several possible responses. In the end, they give the slight nod to a policy of transparency and disclosure. The data they collect about law clerks actually convinces me that it is as or more necessary to engage in internal restrictions (which they also consider). Forbidding law clerks to post on social media seems inadequate, since the real problem is not what they say but the material to which they are exposed, often highly limited material that is mostly about reinforcing their priors. It seems a good minimum idea for judges to simply require law clerks to deactivate any social media account, whether public or anonymous, altogether for the length of their clerkship. (Yes, I assume they will still read newspapers and magazines, doubtless online, along with blogs and other Internet material. While it wouldn't break my heart as a judge to insist that my clerks stay off the Internet for a year, at least the social-media rule would cut down on the hottest of hot takes and the most impulsive, transient, and unreliable reactions.) That won't address the scholarly ethics problem I discuss above, but that's a separate problem that requires its own discussion and response in any event. 

Read the article! It's a start--as it's intended to be. 

Posted by Paul Horwitz on May 29, 2019 at 01:31 PM in Paul Horwitz | Permalink


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