Fun With Pseudonymous Blogging!

Some of you lawyer wonk types of all stripes (like my friend swlip) are probably already aware of the contretemps involving former clerk to Justice Scalia and NRO legal expert Ed Whelan, who on Saturday “outted” a legal blogger posting under the name “publius” over at Obsidian Wings.
Well, it turns out “publius” is a newly-hired, untenured law professor at South Texas College of Law named John Blevins.

BINGO — I knew it!

Seriously, how this adds or detracts to anything is a mystery. If anything, as a long-time admirer of publius I’m happy to see he has a promising new job, but otherwise the “outting” seems to me somewhat petty and most importantly besides the point. It never really mattered to me what his name was, and it doesn’t now.

And I see I’m not alone. Even Ed’s colleague over at NRO’s “Bench Memos,” Jonathan Adler, writes in opposition to Ed’s actions over at the conservative Volokh Conspiracy. I think Adler (a former pseudonymous blogger himself) makes a good point about the self-policing mechanism of doing this under a pseudonym on a regular basis:

While complete anonymity may enable someone to evade any accountability for intemperate or unwise remarks, the creation and maintenance of a pseudonym can have a disciplining effect on blogger behavior, and thus should be encouraged as an alternative to purely anonymous blogging and posting. Reputation effects and the desire to maintain readership can impose significant discipline. A pseudonym operates like a brand name, and the value of the brand is, at least in part, a function of how the pseudonymous blogger acts over time. This disciplining effect is hardly perfect, however, particularly when it comes to maintaining civility. As I believe the tone and snarkiness of many pseudonymous bloggers and commenters attests, a pseudonym can reduce a blogger’s vulnerability to personal attacks and can shield him or her from social sanctions fur uncivil conduct. I believe this means that those who utilize pseudonyms should take greater responsibility for the tone and content of their own posts so their pseudonymous shield does not become a license for nastiness and snark (and I hope I was able to do this when I used a pseudonym). But I also believe that, barring exceptional circumstances (e.g. something far worse than wrong-headed criticism) other bloggers should respect the choice of others to rely upon pseudonyms.

A.L. explains at length why he blogs under a pseudonym here. As a big-time civil litigator at one of the nation’s largest law firms, he feels a cover is necessary because of client concerns etc. Again, it really wouldn’t matter to me to know who he actually is — I respect him for the content of his opinions, not the source of them.

Moving briefly to the substance of the dispute between Whelan and Blevins, it has to do with that old joke about three judges duck hunting, which I guess Judge Sotomayor once used as part of a graduation speech at Hofstra University.

Ok, the joke is as old as the hills, and most lawyers or former law clerks know of it. So the good Judge gets a big fat “C” for humor.

But to try to twist it into some kind of partisan attack on how “activist” Judge Sotomayor is or plans to be strikes me as unfair. It of course ties into the larger attack on Judge Sotomayor’s comments about how appellate courts “make policy” and how wrong she was to say this.

As Volokh comprehensively demonstrates — of course they do, particularly the Supreme Court. For example, the Supremes establish the common law regarding admiralty. They define the defenses to federal criminal charges. He mentions the standard for granting a preliminary injunction, and I would add all the federal common law governing attorney-client and work-product privileges, among many others.

Even regarding statutory interpretation, Volokh makes a strong case that considering policy and consequential or practical implications in tough cases (the kind that make it to the Supremes) are what the Justices expressly do and is a longstanding feature of American law, particularly given the vague texts or statutes that are often at issue. Just think about how federal antitrust law and RICO have evolved among the Circuits, or even Rule 23.FWIW, I think any fair-minded lawyer or judge knows this.

Can you believe we are going to have several more months of this?