Law review articles don’t make newspapers very often. But they do sometimes, as I noted in a post discussing the use of a certain four-letter word by Supreme Courts in the U.S. and Canada. Another example is a very interesting forthcoming paper by Allison Orr Larsen, of the William & Mary School of Law, called “Confronting Supreme Court Fact Finding,” which is the subject of a recent Washington Post story.
What seems to have piqued the Post‘s interest was the reference, in a fiery dissent by Justice Scalia in Arizona v. United States, to an newspaper article published after the oral argument in that case. The article was obviously not referred to by any of the submissions to the court. Justice Scalia, or one of his clerks, found it himself. Never mind the political controversy around Justice Scalia’s comments; “let’s … focus on a different lesson,” says the Post. “[U.S.] Supreme Court justices Google just like the rest of us.”
Indeed they do, writes prof. Larsen, and very frequently. She found more than 100 examples of judicial citations of sources not referred in the record in the opinions of the U.S. Supreme Court issued in the last 15 years; and such citations might be especially frequent in high-profile cases. While the rules of evidence require judges to keep to the evidence put to them by the parties, and appellate courts to the facts found at trial, for the “adjudicative facts” of a case – who did what, where, when, to whom, with what intention, etc. – these limits do not apply to “legislative facts” – general facts about the world or, more specifically, the social (and scientific) context in which legal rules operate.
As prof. Larsen notes, “[i]ndependent judicial research of legislative facts is certainly not a new phenomenon” (6). But new technologies are game-changers, because they make it so much easier. “Social science studies, raw statistics, and other data are all just a Google search away. If the Justices want more empirical support for a factual dimension of their argument, they can find it easily and without the help of anyone outside of the Supreme Court building” (6). If the parties (and interveners) to a case did not provide them with as much contextual information as they would have liked, judges used to have to rely on their own knowledge of the world, or guess, in order to figure out the context in which the rules they applied operated, and present their conclusion as, essentially, bald assertions. No longer. Now they can easily find what someone else has written on whatever topic interests them, and provide that person’s work as a source – an authority – for their assertions.
Prof. Larsen argues that this raises several problems, which the law at present fails to address. One is the risk of mistake. What if the information judges find is wrong or unreliable? Normally, we trust that the adversarial process will allow the parties to point out mistakes in the evidence submitted by their opponents. But if the judges engage in “in-house” fact-finding, there is no one to call them on the errors they might – and surely will – make. What makes the problem even worse is that human psychology and, possibly, technology, can conspire to make the results of judicial investigations biased. It is well-known that we tend to look (harder) for information that supports our hunches (rather) than for that which disproves it. But now, in addition, it is possible for search engine algorithms to supply us with information that suits our (likely) biases as inferred from our previous online activity. There is, apparently, debate over whether Google actually does this, but at least the possibility is there and ought to be worrying. Last but not least, in addition to the problems of error and bias, judicial reliance on “in-house” research is unfair to the parties, who have no notice of what the judges are doing and no opportunity to challenge their findings or even to address their concerns.
In fairness, it’s not as if the old common sense, logic, and bald assertion way of “finding” legislative facts were problem-free. Perhaps, at some point in the past, their experience as litigators was sufficient to teach future judges all they needed to know about the world (though that’s very doubtful). It surely isn’t anymore (as I wrote, for example, here). And bald assertions of judicial common sense are hardly less unfair to the parties, or less affected by bias (class bias for example), than their autonomous research. I don’t know if it is possible to establish with any sort of confidence whether the problems the new resources at the judges’ disposal are creating are worse than those they are displacing. But perhaps it is worth trying.
Another thing I don’t know is whether these problems might be less acute in Canada than they are in the United States. I don’t have any hard numbers, but my impression is that our Supreme Court might cite fewer problematic sources for its legislative-fact-finding. It often relies on the governmental studies, which I suppose are easily available to the parties and surely are (or really, really ought to be) part of the record. I may be wrong about this though. That would be a feasible study, and an interesting one to undertake, but for now, I do not have the time to do so. I would love to hear from those in the know though, former Supreme Court clerks for example.