Author Archives: Michael Froomkin

I know we have at least one blogging ex-judge in the US. There's the judge who collects legal humor. And, of course, there's Judge Posner, something of a law unto himself, who give his views online (mostly with his law & economics professor hat on), but do we have any serving judges with a full-time blog who discuss matters at all close to their service on the bench?

England (allegedly) does. See the (pseudonymous) The Magistrate's Blog. [In fact, I've just realized as I was editing this post, there's more than one, as the View From The Bench plausibly claims to “Being the thoughts, rants, speculations and anecdotes of a magistrate on a northern bench.”]

An English magistrate is a judge of limited jurisdiction, mostly petty offenses punishable by up to six months in gaol. Interestingly, many magistrates are not trained lawyers, although they do have legal advisers. (See the Wikipedia entry for more comprehensive, and perhaps even accurate, information.)

Whoever “Bystander” is, real magistrate or not, The Magistrate's Blog is an erudite and interesting blog. Yet there are some obvious ethical issues raised by a judge commenting on things that touch on past cases; these concerns are perhaps lessened by the magistrate's historical role as something of a representative of community values, or (traditionally) at least of the values of the better and rather more upper-crust elements of the community.

The magistrate, if that s/he be, deals with these with this self-description and disclaimer:

Musings and Snippets from an English Magistrate This blog is anonymous, and Bystander's views are his and his alone. Where his views differ from the letter of the law, he will enforce the letter of the law because that is what he has sworn to do. If you think that you can identify a particular case from one of the posts you are wrong. Enough facts are changed to preserve the truth of the tale but to disguise its exact source.

And perhaps that is enough.

Even so, I don't think that a sitting US judge would dare do anything like this. We've seen a prosecutor get in trouble for blogging. And of course there was the defendant who blogged about his own case pseudonymously — and lost the case when opposing counsel figured out who he was.

There are also a host of juror-bloggers. There's nothing wrong with a (petit) juror blogging after the trial is over, but it's obviously a ground for major concern if it happens during the trial as it provides a conduit for juror to lawyer/party communications which (a) might give one side an unfair advantage if only one side is learning what arguments are working ; (b) facilitate jury tampering; (c) provides fertile grounds for appeals. (More on blogging jurors here and here and no doubt elsewhere.)

Don't get me wrong, as a reader, I'm a fan. And I'm prepared to agree that the world is better off with the Magistrate's Blog than without it — so long as it's being true to its promise to change enough facts “to preserve the truth of the tale but to disguise its exact source”. But that is very difficult to do consistently over a long period of time. How, I wonder, was it done in this post, for example? (In the comments, Bystander even states that counsel read a particular case to the court!) If indeed the blog is by an actual Magistrate, the danger of slipping, or even of discovery over time without any slipping, is all too real.

Would discovery be that bad? In principle there's no difference between a judge writing an academic article about law reform and a magistrate blogging about legal issues that come up in and around the court s/he serves on. Were I a judge, however, I don't think I'd blog, and I certainly wouldn't do it pseudonymously if only because people would be sure to see that — however unfairly — as a sign of a guilty conscience. More importantly, print usually has editors and always takes time, which gives one opportunities for reflection. Blogging is quick and usually unedited. Risky….

But meanwhile, I'm going to be reading what “Bystander” writes.