Commentary on commentary

The en banc Fifth Circuit recently denied review of Repub. Nat’l Comm. v. Wetzel – a panel opinon in a larger tradition of conservative distaste for mail. A dissent by Judge Higginson favorably noted commentary on the panel opinion, which draws an interesting distinction among (1) the parties’ briefs; (2) amicus submissions; and (3) public commentary, whether by academics or practioners (or earnest bloggers):

We benefit from lawyer insight and criticism. Though we receive amicus curiae briefs less frequently than the Supreme Court, they provide primary opportunity for non-party lawyers to give insight, albeit with stringent requirements. It is rarer that topflight lawyers, like Unikowsky, have time to offer scholarly critique of a case neither he, nor Bernstein, was retained to handle. Chief Justice Roberts recently reminded that “public engagement with the work of the courts results in a better-informed polity and a more robust democracy.” It is for this reason that the judiciary depends on lawyers, not just as party advocates, but also for all forms of engagement with courts. “[I]nformed criticism” of court opinions from lawyers unaffiliated with the parties is in that vital tradition.

I explored the interplay between non-litigation sources of information and the party-presentation principle in this Cornell Law Review article last year.