Thursday, June 28, 2012

Where to begin? Judges Gone Wild!

There are so many hot stories today:

The Supreme Court just announced its 5-4 decision on the Affordable Care (Health Care) law... ABC News site
and a PDF of the decision)
The firestorm of criticism over Justice Scalia's bitter dissent and announced diatribe following the Arizona Immigration decision... Toobin in The New Yorker is really mild, actually. What was surprising was when Judge Posner came out swinging on Slate!)

But what I figure there will be plenty of time to chew these over & lots of folks chewing... what really want to focus on is:

Judges Searching on the Internet

The Boston Globe ran an interesting story, both on its online Brainiac blog and eventually in its Sunday Ideas print section. The story, by Josh Rothman, is actually distilled from a scholarly law review article by Alison Orr Larsen, "Confronting Supreme Court Fact Finding," forthcoming in the Virginia Law Review. Apparently, Supreme Court justices, and judges at all levels are finding it nearly irresistible to pop onto the Internet to flesh out the information they are given in the briefs and arguments by the parties.

On the one hand, you can look at some of the online research as "taking judicial notice of publicly known facts." It's also fed by the way all law students and lawyers are taught to write. We feel the NEED to provide a citation to back up ALL our statements. So if a judge wants to say the sky is blue, he or she feels nearly compelled to find some authoritative-sounding statement somewhere to support that comment.

But it goes much farther than that. We all know -- especially librarians! -- how seductive it can be to do a little research.

But! This research is in such a different context. When statements and facts are suddenly being introduced, with no ability for parties to examine the source's:

1. Authority or accuracy -- nobody can cross-examine the "witness" when Judge X or Justice Z googles for some info!

2. Fairness -- no lawyer can stand up and object, "Your honor, that is prejudicial to my client, and filled with innuendo!" Just consider that this fact-finding amounts to evidence, and may be hearsay!

3. Impermanent Nature.... The webpage relied upon by Justice Z or Judge X may not look the same or even exist the next day when other justices or the parties want to go and look at it. Librarians and scholars of the Internet call this link-rot. And it is a very poor way to write an opinion, and especially unfair to the parties and to later courts and researchers who may not be able to locate the page at all or in the form that it was used for the decision.

The American Bar Association has actually provided quite an excellent opinion on the matter: Judicial Ethics and the Internet: May Judges Search the Internet in Evaluating and Deciding a Case? by David H. Tennant and Laurie M. Seal. The opinion goes into considerably more detail than this brief blog post. It also links the reader to the Ethics Rules, The Code of Conduct for United States Judges and the American Bar Association's Model Code of Judicial Conduct. None of these codes specifically mention searching the Internet, but the authors do pull out of the language and commentary some guidance on the matter that seems very helpful. The ABA Model Code of Judicial Conduct, Canon 3, for instance,
("A judge shall perform the duties of judicial office impartially and diligently") The commentary to that canon states, "A judge must not independently investigate facts in a case and must consider only the evidence presented." This comment suggests that judges who obtain information from the Internet and apply the information in resolving factual disputes may be acting inappropriately
The authors also go on to alert the readers very helpfully that
The ABA Joint Commission to Evaluate the Model Code of Judicial Conduct has recently proposed a revision to the Model Code that more specifically restricts judges from accessing the Internet. The Commission's 2004 draft of the Model Code states within its rule 2.09 that "a judge shall not independently investigate facts in a case." The commentary to that rule provides as follows: "The prohibition against a judge investigating the facts of a case independently or through a member of the judge's staff extends to information available in all mediums including electronic access."
Note that I have removed some footnote references from within the text that I am presenting here, in order to make it easier to post to a blog. If you are interested in this topic, I highly recommend following the link to the full report, which is excellent, and not overwhelming.

The illustration of the line of British judges in their new brilliant red robes and wigs marching in what looks suspiciously like a prisoner line is from a story in the Guardian

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