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Three Cheers for Commenter BruceM,

whose comment was cited in a Fourth Circuit appellate brief a few months ago. It's in the Reply Brief of Plaintiff-Appellant Christopher Scott Emmett, filed by the Virginia Capital Representation Resource Center in Emmett v. Johnson, 2008 WL 345230, *5 n.5 (4th Cir. Jan. 11):

Since the grant of certiorari in Baze, some commentators have suggested that other controlled substances could be used in lieu of a barbiturate to cause painless death. See, e.g., The Interesting Case of Baze v. Rees, http://volokh.com, archived entry posted 12/31/2007 at 1:09 a.m., comment #8 by BruceM (speaking, with some apparent authority, in favor of using potent opioid to accomplish lethal injection).

A quick search also noted that I quoted a comment by James Fulford in my Washington U. L. Rev. piece on Scholarship, Blogging, and Tradeoffs: On Discovering, Disseminating, and Doing, and Larry E. Ribstein quoted a comment by Marty Lederman (a prominent lawyer, and now a prominent blogger, in his own right) in his piece in the same symposium, on The Public Face of Scholarship. But this is the first comment cite I've seen in the briefs, and I've seen none in court cases. If you can find other such cites — again, not to blog posts as such but to comments, preferably by people who aren't themselves noted scholars, lawyers, or bloggers — please note them in the comments below.

Aaron Nowack:
Since I assume other people will also want to read the comment in question, it seems to be this one. [EV: Thanks for pointing out that I hadn't linked to the comment; just added a link.]
4.25.2008 8:30pm
alias:
I'm guessing that the appellant hasn't a leg to stand on. In the hierarchy of authorities to rely on in briefs, I imagine it goes something like this:

1. On-point Supreme Court cases
2. On-point binding court of appeals opinions
3. Analogous Supreme Court cases
....
6. Dicta in Supreme Court cases
....
12. Law review articles
...
22. Blog posts by well-known law professors, opining persuasively in their area of expertise and citing authority.
...
45. Op-eds in national newspapers.
...
75. Blog comments written by well-known law professors, opinion persuasively in their area of expertise and citing authority.
...
3,015,036. Particularly clever LolCats pictures.
3,015,037. Blog comments by people who speak "with some apparent authority"
4.25.2008 8:49pm
frankcross (mail):
Could there be a clearer sign that the Apocalypse is upon us?
4.25.2008 9:19pm
justwonderingby:
OMG, Bruce M rests on what authority to make that claim? Have the courts really become this ridiculous?
4.25.2008 9:30pm
George Tenet Fangirl:
alias, gunning for a cite in the appellee's brief, eh?
4.25.2008 9:36pm
OrinKerr:
Given that I strongly disagree with almost every word that BruceM has written on this blog, I pretty much have to agree with frankcross.
4.25.2008 9:57pm
Dave N (mail):
I re-read the entire thread that BruceM was cited from. Frankly, re-reading it, I noted that the entire thread is in the finest traditions of the VC (I acknowledge I posted several times in it). The debate was civil and the commenters were polite and respectful with each other, even when they disagreed. So if the entire thread was read, the judges were

BruceM made a knowledgable sounding point--and I give him the benefit of the doubt that he knew what he was talking about from a scientific standpoint.

If there was error, it was not in BruceM's comment, it was the Virginia Capital Resource Research Center not finding a more "authorative" source that said the exact same thing.
4.25.2008 10:13pm
Dave N (mail):
Repeat after me. Preview is my friend.

In full, the final sentence of the first parapraphh should read:

So if the entire tread was read, the judges were treated to an enlightened, civil debate on capital punishment.
4.25.2008 10:15pm
alias:
No, Fangirl. The appellee has already written and filed its brief in this case, unless it's a cross-appeal and the appellee has gotten an extension of several months.

If that's the case, though, maybe I should set to work making a lolcat picture that contradicts BruceM. "I can haz barbiturate?" is too obvious. Maybe "Do not want!" with a picture of a cat in front of "other controlled substances"? I've never done one before.
4.25.2008 10:16pm
rotflmfao (mail):
Do you really want to encourage this sort of advocacy? Come on, folks. Legal writing is pilloried because of the incessant footnoting. If we've come to the point where court seriously consider as valid support some anonymous comment on a blog, frankcross is right.
4.25.2008 10:23pm
Apodaca:
alias writes:
If that's the case, though, maybe I should set to work making a lolcat picture that contradicts BruceM. "I can haz barbiturate?" is too obvious.
This calls for a derivative LOLcourts meme, e.g., INVISIBLE YOUNGER ABSTENTION or KTHXGVR.
4.25.2008 11:29pm
GV:
I don't know who BruceM is, but I'm now pretty sure he works for the Virginia Capital Resource Research Center.
4.25.2008 11:59pm
Eugene Volokh (www):
The funny thing is that the brief writer could easily have figured out BruceM's identity, from the e-mail address he included in the comment. (He's not trying to be anonymous.) Then the brief writer could have specifically characterized this as a comment by "Attorney Bruce Maltese" or "Texas criminal defense lawyer Bruce Monegasque" or some such -- better, I think, than just citing to a pseudonymous post but who-knows-who-it-might-be.
4.26.2008 12:36am
Dave N (mail):
Eugene,

You are right, if BruceM is trying to hide his identity, he is doing a piss poor job of it. I figured it out in about 5 minutes. However, I do think "comment #8 by BruceM" sounds more authoratiative than "comment by attorney Bruce M_______, who was first licensed in 2003."

(If you want to figure out who BruceM is, do your own research, it's not my place to reveal his true identity).
4.26.2008 1:01am
ridic256:
http://www.lawbmc.com/attorneys.cfm
4.26.2008 4:26am
siminsoner (mail) (www):
MESSAGE
4.26.2008 4:52am
martinned (mail) (www):
L.S.,

I guess this is just the result of how lawyers are trained to write. Every statement has to be supported by "authority", even if that "authority" is nothing more than a statement by someone else. The value of this blog comment is simply in proportion to how much sense it makes, which, presumably, is the same as the amount of sense made by whatever was written in the brief just before the footnote. The only thing this cite prooves is that the attorneys on brief didn't make this opinion up just for convenience.
4.26.2008 10:04am
justme:
Eugene: Aren't you assuming that whoever posted BruceM as their identity is actually BruceM? I mean, I could probably sign my name "BruceM" here and nobody would be any wiser. It's not like blogs usually verify people's identity... that's the perils, I suppose, of the internet.
4.26.2008 10:14am
Eugene Volokh (www):
Well, this particular comment includes an e-mail address, and from the address one can deduce the person's identity, workplace, and phone number -- one can just call a confirm.
4.26.2008 11:03am
againme:
Oh, this is the same BruceM then who said this:

In fact, being a rape-toy for a pedophile is probably the most useful thing most children will ever be. The rest of the time they will just be loud, obnoxious little vandals.

That's just great. Nice to know that the courts look to such reasoned minds to support their arguments.
4.26.2008 11:44am
Jon Rowe (mail) (www):
Bruce is a modern day WC Fields.
4.26.2008 1:41pm
Gene Hoffman (mail) (www):
As potentially amusing this occurrence is, I don't think its outlandish to believe that some forum, blog posts, and blog comments could become as persuasive as a local newspaper article as a citation. Lots of interesting public policy gets debated at high levels in many forums and blogs. Just look at the fishing subpoena that the Thermisol skeptic received. Another major category of debates that may reach siteability are the climate debates where the science is being actively debated online with links to the underlying data.

-Gene
4.26.2008 2:36pm
Hans Bader (mail) (www):
My comments at Scotusblog have been cited in a law review. See Bradford C. Mank, IMPLEMENTING RAPANOS--WILL JUSTICE KENNEDY'S SIGNIFICANT NEXUS TEST PROVIDE A WORKABLE STANDARD FOR LOWER COURTS, REGULATORS, AND DEVELOPERS?, 40 Ind. L. Rev. 291, 343 n. 449 (2007) (citing my comment as to whether Justice Kennedy's concurrence in a Supreme Court case about the scope of the Clean Water Act is controlling under Marks analysis).

I'm a lawyer, but my comments didn't identify me as such, and not all commenters at Scotusblog are lawyers.

Blog comments aren't unique in being cited despite the terseness of their analyses. Web site postings and short letters to the editor have been cited in law reviews, too. See, e.g., Irina V. Nirshberg, PRIOR RESTRAINT ON SPEECH AND WORKPLACE DISCRIMINATION: THE CLASHING OF TWO FUNDAMENTAL RIGHTS, 34 Suffolk U. L. Rev. 577, 585 n.65 (2001) (citing my New York Times letter to the editor about free speech versus racial and sexual harassment regulations); Russell G. Pearce, THE LEGAL PROFESSION AS A BLUE STATE: REFLECTIONS ON PUBLIC PHILOSOPHY, JURISPRUDENCE, AND LEGAL ETHICS, 75 Fordham L. Rev. 1339, 1339 &fn. 1 &2 (2006) (citing my observations about how liberal lawyers are compared to the general public, from my employer's web page for me)).
4.27.2008 10:40am
Jon Rowe (mail) (www):
4.27.2008 1:10pm
BruceM (mail) (www):
How cool is this!
4.28.2008 1:48am
BruceM (mail) (www):
Anyone have the email address of Michele J. Brace, who wrote the appellate brief?

Eugene: If he had emailed me, I would have happily given him my full name.

Yeah it shouldn't be too hard to find my identity. In fact, you'd have to be kinda dumb to not be able to figure out who I am. Indeed, I'm an attorney licensed in texas in 2003, as noted above.

againme: Sure is the same, but you have to put my comments in context. Most people on that thread backed up my comment, only a few whined for an apology.

Some of my comments are said tongue-in-cheek to generate a response while making a blunt point, while others (like the one quoted in the brief) are meant seriously.
4.28.2008 1:58am
BruceM (mail) (www):
One more thing... while I'm really flattered at having my post cited in a brief as legal authority, citing a blog post as legal authority in a federal appellate brief is really quite indecorous. I might be willing to point out an entire discussion as evidence a specific topic is debated or that various positions are accepted... but one individual post by an unidentified internet poster ... can't say I've seen it before, nor would I ever do it.
4.28.2008 2:08am