A 'Body of Precedent Written on the Wind?'. Wiki Courts, 'Link Rot', and Independent Judicial Internet Research
| Author | Karen Eltis |
| Pages | 25-64 |
25
CHAPTER 2
A “Body of Precedent Written on the Wind?”1
Wiki Courts, “Link Rot,” and Independent Judicial
Internet Research
A. COMPETENCE AND ACCESS TO TECHNOLOGY
Competence is a vital ethical principle,2 thus rendering judicial comfort
with basic precepts of technology essential in t his web-dependent society.3
According to the Canadian Judicial Cou ncil’s Ethical Principles for Judges,
“Judges should take reasonable steps to maintain and enhance the know-
ledge, skills and persona l qualities necessary for judicial oce.”4 Likewise,
the ABA Model Code of Judicial Conduct rules provide that “[a] judge shall
1 Judicial Conference of the United State s.
2 Jura novit curia — la cour connaît le droit (“the cou rt knows the law,” some-
times tran slated as “the court knows the lay”). For an i n-depth discussion, see
Douglas Brooker, “Va Savoir! — e Adage ‘Jura Novit Curia’ in Contemporary
France” bepress Legal Se ries, Paper 845 (30 October 2005), online: http://law.
bepress.com/cgi/viewcontent.cgi?article=4295&context=expresso. Of course,
as Mashaw cautions: “Many arg uments about judicial competence are vague
about their normative foundat ions because ‘competence’ can convey a concern
for either ‘authority’ or ‘capacity.’ Because ‘capacity’ i s also a functionalis t
argument for alloc ating ‘authority,’ this conceptual confu sion seems almost
inherent in the interpret ive debate.” See Jerry Mashaw, “Between Facts and
Norms: Agency Statutory Inter pretation” (2005) 55 University of Toronto Law
Journal 497 at 502.
3 See David H Tennant & Laurie M Seal, “Judicia l Ethics and the Internet: May
Judges Search the Internet i n Evaluating and Deciding a Cas e?” (2005) 16:2
e Professional Lawy er, online: w ww.abanet.org/judicia lethics/resources/
TPL_jethics_internet.pdf.
4 Canadian Judicia l Council, Ethical Principles for Judges (Ottawa: Canadian
Judicial Cou ncil, 1998) Principle 4(2): Diligence .
Courts , Litigants, and the Digi tal Age26
perform judicial and administrative duties competently and diligently,”5
noting that “[c]ompetence in the performance of judicial duties requires
the legal knowledge, skill, thoroughness, and preparat ion reasonably ne-
cessary to perform a judge’s responsibilities of judicial oce.”6 In eect, a
court is presumed to know the law and expected to be cognizant of and
sensitive to social context.7 In today’s reality, that includes oen-intricate
concepts that the “experts” themselves have yet to address, let alone resolve.
As Elizabeth ornburg correc tly notes in her enlightening article on
this point:
[J]udges in the twenty-rst century nd themselves in a world where
litigation — both civi l and criminal — involves a vast ar ray of complex
and technical fac tual disputes. ese lawsuits , in turn, may cause judges
to seek a greater level of expert ise in order to deal competently with the
evidence that will be relevant to those disputes . . . . Court s are asked
to decide questions such as: whether medici ne can eliminate the risk of
dying in severe pain; whether psychologists can predict future danger-
ousness; whether punishments deter crime; whether building projects
threaten wildlife; and whether exposure to var ious chemicals creates a
risk of public injuries or death. A n appellate court, ordinarily bou nd by
a case’s trial court record, might want information outside the record
because an issue is very dicult, or because the record is inadequate,
especially if one party had far superior resources leadi ng to a lopsided
presentation, or because technica l knowledge has evolved since the time
of trial .
At the same time, adva nces in communication technology have
brought the world’s library to the cour thouse, requiring no onerous
trips across town or index sea rches but only the click of a mouse. When
judges feel the need for additional information, the easy availabilit y of
the Internet is a powerful temptation.8 is combination of felt need
and ready access has turned a once-marginal concern into a dilemma
5 American Bar Associat ion, ABA Model Code of Judicial Conduct, 2011 ed (Chi-
cago: American Ba r Association, Center for Professional Responsibil ity, 2010)
Rule 2.5(A) [ABA Model C ode].
6 Ibid, comments to Rule 2.5.
7 “Lawyers and academics ca n help the judiciary along this pat h with their legal
arguments and w ritings, but in the end the judges have to make t he decisions.
ey must be enlightened dec isions, aware of the social fabric of our ti me, with
our nger on the pulse of huma nity.” See Constance R Glube, former chief
justice of Nova Scotia, i n her essay “e Role of the Judge” in Rosalie Abella &
Melvin Rothma n, eds, Justice beyond Orwell (Montréal: Yvon Blais, 1985) at 486.
8 Take, for example, the (socia l security benets denial) c ase of Purvis v Commis-
sioner of Social Sec urity, 2011 US Dist LEXIS 18175 (DNJ), where the presiding
Chapter 2: A “Body of Precedent Writ ten on the Wind?” 27
that aects cour ts and litigants daily. e problem of judicial research
has always been wit h us, lurking in the margi ns, and yet we do not have
a workable framework for discerni ng when it is and is not permissible.
We can no longer comprehensively fail to engage this question, because
it is now taking on a centra l importance to proper judicial decision-
making in a n increasing number of cases.9
Indeed, although direct ly salient to inmates’ constitutionally pro-
tected right to a full answer and defence — rather than to judges’ own
preparedness — a recent Canadian decision proclaiming Internet legal
research central to the above-said right is telling. Reecting the essential
nature and enhanced stature of Internet research to mounting a defence,
but arguably telling far more broadly, the judge in that case opined that he
was “hard pressed” to see how one can mount an eect ive defence without
the Internet generally and the CanLII website (housing Canadian juris-
prudence), in particular.10
Although the exact degree of requisite expertise remains to be deter-
mined, judges for certain must possess some understanding of the funda-
mental notions of science and technology in order to grasp the related issues
permeating cases and to adequately lter and assess evidence.11 Further,
as online communication increasingly forms the subject of legal dispute,
judges must develop the aptitude for understanding both (fundamental)
judge visited the plai nti’s Facebook page on her own initiative to d iscover
what appeared to be the plai nti smoking. Said the judge:
[A]lthough the Court remands t he ALJ’s decision for a more detailed
nding, it notes that i n the course of its own research, it discovered one
prole picture on what is belie ved to be Plainti’s Facebook page where she
appears to be smoking. P role Pictures by eresa Purv is, Facebook [link
omitted] (last visite d Feb. 16, 2011). If accurately depicted , Plainti’s cred-
ibility is justi ably suspect.
9 Elizabet h G ornburg, “e Curious Appellate Judge: Eth ical Limits on Inde-
pendent Research” (2008) 28:1 Litigation Review 131 (Lex is).
10 R v Biever, 2015 A BQB 301 at pa ras 92 and 126. See also Sar ah Burton, “Life,
Liberty, and the R ight to CanLII: Legal Resea rch behind Bars” (3 June 2015),
ABlawg.ca (blog), onli ne: http://ablawg.ca/2015/06/03/life -liberty-and-th e-
right-to-ca nlii-legal-res earch-behind-ba rs.
11 Se e, for example, Scalia J’s mischarac terization of HBO as “cable” in American
Broadcasting Compani es, Inc v Aereo, Inc, 573 US ___ (2014), discussed in
Brett LoGiurato, “Justice Sc alia Did Not Know You Can’t Get HBO for Free”
Business Inside r (22 April 2014), online: www.businessi nsider.com/scalia-hbo-
aereo-case -supreme-court-2014-4.
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