Alli Orr Larsen (William & Mary Law School) & Jeffrey L. Fisher (Stanford Law School) have posted Virtual Briefing at the Supreme Court (109 Cornell Law Review (2019, Forthcoming)) on SSRN. 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.
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