7th Circuit, Benchslaps, Federal Judges

Benchslaps Fly Over Judges Doing Factual Research On The Internet

The benchslaps are fun, but the debate is real and important.

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Back in 2005, Justice Anthony M. Kennedy caused a bit of a ruckus in the legal and political worlds by mentioning in passing, in congressional testimony, that he sometimes does his own case research on the internet. Critics, most prominently House Majority Leader Tom DeLay, accused Justice Kennedy of improperly going beyond the record evidence in cases to rely upon “facts” of dubious, web-based provenance.

A decade later, the internet is a very different place. There’s a lot more information on the internet, and consumers of that information have gotten a lot more sophisticated about figuring out what’s reliable and what’s not.

But the debate over whether it’s appropriate for judges to engage in internet research when resolving cases — “internet research” as to factual matters, not using the web to access Westlaw, Lexis, or other legal resources — rages on. The U.S. Court of Appeals for the Seventh Circuit has been the biggest battle front, with Judge Richard Posner as the biggest proponent of internet research. (It’s part of his broader judicial philosophy of pragmatism, which he describes in detail in his very interesting book, Reflections on Judging (affiliate link).)

Here’s the latest Seventh Circuit skirmish, a case called Rowe v. Gibson (via Howard Bashman of How Appealing). Jeffrey Allen Rowe, a prison inmate proceeding pro se, is suing various prison officials under 42 U.S.C. § 1983. Rowe accuses the officials of deliberate indifference to his serious medical need, specifically, need for proper treatment of his reflux esophagitis aka gastroesophageal reflux disease (GERD).

You know a case is messy when a three-judge panel issues three separate opinions (plus an appendix). And as you’d expect from a panel featuring the tart-tongued Judge Posner, a few good benchslaps get dispensed, as chronicled by Professor Josh Blackman.

Judge Posner’s majority opinion, joined by Judge Ilana Diamond Rovner, cites such internet authorities as the NIH, the Mayo Clinic, WebMD, and Wikipedia in the course of analyzing Rowe’s medical claims. Judge David Hamilton’s opinion, concurring in part and dissenting in part, castigates the majority for its extra-record adventures. Let’s start with Judge Hamilton (emphasis added):

I must dissent, however, from the reversal of summary judgment on Rowe’s claim regarding the timing for administering his medicine between January and July 2011 and after August 2011. On that claim, the reversal is unprecedented, clearly based on “evidence” this appellate court has found by its own internet research. The majority has pieced together information found on several medical websites that seems to contradict the only expert evidence actually in the summary judgment record.

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Gotta love Judge Hamilton’s use of scare quotes around “evidence.”

Judge Posner’s opinion defends the use of outside research because pro se prisoners like Rowe don’t have easy access to expensive expert witnesses to support their claims, arguing that “[i]t is heartless to make a fetish of adversary procedure if by doing so feeble evidence is credited because the opponent has no practical access to offsetting evidence.” (By the way, Judge Posner seems quite fond of the h-word these days; remember his calling Chief Justice Roberts’s gay-marriage dissent “heartless.”) Judge Hamilton doesn’t buy it:

The majority writes that adherence to rules of evidence and precedent makes a “heartless … fetish of adversary procedure.” Yet the majority’s decision is an unprecedented departure from the proper role of an appellate court. It runs contrary to long-established law and raises a host of practical problems the majority fails to address.

After acknowledging the existence of a debate on the subject of factual research by judges, Judge Hamilton writes this (emphasis added):

Using independent factual research to find a genuine issue of material, adjudicative fact, and thus to decide an appeal, falls outside permissible boundaries. Appellate courts simply do not have a warrant to decide cases based on their own research on adjudicative facts. This case will become Exhibit A in the debate. It provides, despite the majority’s disclaimers, a nearly pristine example of an appellate court basing a decision on its own factual research.

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Ouch. Translation: “Judge Posner, you are now the poster child for irresponsible judicial fact-finding.”

Later on in the opinion, Judge Hamilton refers snarkily to “[l]aw-office or judicial-chambers medicine,” arguing as follows about the web:

Law-office or judicial-chambers medicine is surely an even less reliable venture. The internet is an extraordinary resource, but it cannot turn judges into competent substitutes for experts or scholars such as historians, engineers, chemists, psychologists, or physicians. The majority’s instruction to the contrary will cause problems in our judicial system more serious than those it is trying to solve in this case.

In other words, to use a health-care metaphor, the medicine here is worse than the disease.

Judge Posner, who is by his own admission “outspoken” and occasionally “irritable,” doesn’t take these jabs sitting down. In fact, he devotes a separate appendix to refuting Judge Hamilton’s points. Here’s a taste of the judicial sauce:

[I]t can’t be correct that providing “some” treatment of pain always gets a prison doctor off the hook. Suppose Rowe were in agony from a slipped disk; would it be enough for Dr. Wolfe to give him an aspirin? To tell him, if he broke his leg, that it would heal by itself, in time?

I like Judge Posner’s conversational tone in this section of the appendix (again, emphasis added):

The dissent says that “when a prisoner brings a pro se suit about medical care, the adversary process that is the foundation of our judicial system is at its least reliable. Few prisoners have access to lawyers or to expert witnesses needed to address medical issues.” Right on! (And Rowe is not one of the few who does have the necessary access.) But affirmance of a quite possibly incorrect decision cannot be the correct solution to the problem thus correctly stated by the dissent.

Here is Judge Posner’s succinct response to the claims of “law-office or judicial-chambers medicine”:

The dissent again states that we are requiring judges to conduct their own factual research. No. We are even accused by the dissent of trying to turn judges into substitutes for physicians. Again no.

Some readers might be drawn to the middle ground of Judge Rovner’s concurring opinion:

A disagreement about the outcome of this relatively simple case has morphed into a debate over the propriety of appellate courts supplementing the record with Internet research. To be clear, I do not believe that the resolution of this case requires any departure from the record: as the majority opinion makes patently clear, Rowe has consistently maintained that he experiences hours of severe pain if he does not take Zantac with his meals, and at this stage of the proceedings his assertions of extreme pain must be credited. Given that, I think this case can be decided on the fundamental and unremarkable rule that we give Rowe the benefit of all conflicts and draw all reasonable inferences in his favor as the nonmoving party.

It’s an interesting debate — and one that will only intensify in the years ahead, as younger lawyers who are more comfortable with citing internet sources eventually become judges. Professor Will Baude wonders — on Twitter, where this topic is the subject of lively debate — whether the Supreme Court might agree to take one of these extra-record internet research cases to provide some guidance.

Check out all the opinions in Rowe for yourself, via How Appealing, then vote in our reader poll:

Who has the better of the argument over internet research in Rowe v. Gibson?

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Judge Posner and internet research [How Appealing]
Judicial Fact-Finding Run Amok: Dr. Posner Cites MayoClinic.org To Contradict Expert Witness’s Testimony [Josh Blackman’s Blog]

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