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The Internet and Crazy Cases

By "Milbarge" and "Fitz-Hume"

My eye caught the news last week that Marrita Murphy filed a cert petition in the Supreme Court. See more at How Appealing, SCOTUSBlog, and the Tax Prof Blog. The petition is noteworthy because Ms. Murphy won a short-lived victory in the D.C. Circuit a few months ago in her suit against the IRS. I wrote about it here.

Basically, a D.C. Circuit panel held that the IRS could not tax her recovery in a lawsuit for a non-physical personal injury (emotional distress and loss of reputation), because that section of the tax code was unconstitutional under the 16th Amendment. Well, that's just crazy talk. Not only was it wrong as to the 16th Amendment, it still left Congress's taxing power under Article I, which the court didn't address. Long story short, the internet generally and tax experts specifically went berserk, the panel granted rehearing (in the face of a very strong en banc rehearing petition from the government), and reversed itself. It is from that new judgment that Ms. Murphy now seeks cert. Odds the writ is granted: 0.01%, and that slim chance is only in case the Supreme Court wants to drive a stake into this claim forever.

It's obvious to me that the internet obloquy played a large part in the panel's reversal. That's not to say that the decision would have slipped completely under the radar without the blogosphere drawing attention to it. But enough people who were in a position to make a difference -- judges, justices, law clerks, government attorneys -- read those blogs; it was like having dozens of amicus briefs and rehearing petitions. That had to factor in to the panel's decision.

And so I had to wonder if this kind of thing would have made a difference if the internet had been around years ago. I'm not talking only about the cases that still generate controversy and commentary. I'm thinking of the kind of case that would have been nearly universally mocked and ridiculed to the point that the court might have been shamed into changing its mind (or motivated a higher court into reversing). The first case that came to mind was the infamous 1947 Texas Court of Criminal Appeals case where the court reversed a conviction because the indictment did not specify that the defendant stomped the victim to death with his feet. It's amusing to imagine the kind of treatment that case would have gotten around the blogosphere. (Any other suggestions?)

On the whole, I think this phenomenon is a good thing. I don't think judges (or clerks) should write opinions with an eye towards getting blog cites. (Whether they do is a topic for another post.) But the increased chance that a truly strange decision will get noticed can only be good for the ultimate direction of the law. And I can't complain about anything that saved us from the original Murphy decision.

Full post as published by Begging the Question on December 16, 2007 (boomark / email).