Should the Supreme Court Take Advantage of the Web?

The recent mistake by the Supreme Court in the Kennedy case (missing a federal law authorizing the death penalty for child rape) has prompted this interesting idea from law professor Tom Smith over at The Right Coast. He suggests that the Supreme Court should post its decisions on the Web before they become final, to take advantage of bloggers who might discover errors:

Is there a way that the Court could take advantage of current social technologies to dramatically improve its understanding of the relevant law in any given case? Of course there is, but I'm not holding my breath. You could, for example, post all of the briefs in wiki format, or something similar, and then sift through the results. But any procedure you could come up with could be gamed, and it seems unlikely the federal judiciary could ever bring itself to modify its procedures to really take advantage of Web 2.0 sorts of tech, at least not until we are on Web 6.0 or so, or indeed before the Singularity gets here anyway. Perhaps some law clerk will be drafting the opinion and his computer will say back — "No, no, you're getting that wrong. There is a federal law on this — here, I'll send you the cite."

The "wisdom of crowds" is a well-documented phenomenon. It would be nice if the Supreme Court (among other important institutions) could figure out how to harness it.

When I was a judge, I tried to take advantage of the wisdom of others in a very modest way. I circulated "tentative" written rulings to the parties before holding oral argument, and then at the argument asked the parties whether they saw anything wrong with my proposed decision. Perhaps the Supreme Court could read the merits briefs in a case, release tentative opinions to the general public, and then hold oral argument — followed by revisions of the opinions if the arguments (and perhaps supplemental briefing) disclosed any errors.

Update: Law prof Jason Mazzone has made a similar suggestion to this a few years back, available at this link.

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