Opinion 23-59

Short-Form Opinion

May 4, 2023

Question:    May a full-time judge write law review or law journal articles summarizing the current state of New York case law and developments therein? If so, may a judge identify future issues in the development of case law?

Discussion:  In our prior opinions we have concluded that a judge may write and publish books, articles, manuals, columns, and commentaries about the law, subject to generally applicable limitations on judicial speech and conduct.  When writing for legal publications, a judge should avoid the perception that he/she is providing advice on litigation strategy or tactics and may not comment on matters of substantial public controversy.

With respect to your second question, we have advised that a judge may discuss the direction of case law and unresolved issues in the law generally but should avoid commenting publicly on matters which remain pending or impending.  We have said that “minimal and essentially factual commentary on changes in the law in the context of updating a legal treatise – indicating the nature and extent of changes, unresolved questions, any regional differences (such as a department or circuit split), and procedural impacts that are clear on the face of a decision – does not constitute impermissible public comment within the meaning of the Rules, provided that the writer does not resolve ambiguities or otherwise interpret the opinions described, and does not express subjective praise or criticism of them” (Opinion 13-06).

Enclosed:    Opinion 13-06; 10-153.