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 oce.”4 Likewise,

the ABA Model Codeof 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 preparation reasonably ne-

cessary to perform a judge’s responsibilities of judicial oce.”6 In eect, 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 oen-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 . . . . Courts 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 various 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 dicult, or because the record is inadequate,

especially if one party had far superior resources leading to a lopsided

presentation, or because technica l knowledge has evolved since the time

of trial .

At the same time, advances in communication technology have

brought the world’s library to the courthouse, 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 availability 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, ABAModel 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 benets 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 aects courts 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 discerning when it is and is not permissible.

We can no longer comprehensively fail to engage this question, because

it is now taking on a central importance to proper judicial decision-

making in a n increasing number of cases.9

Indeed, although directly 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. Reecting 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 eect 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

prole picture on what is belie ved to be Plainti’s Facebook page where she

appears to be smoking. P role 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).

10R 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-canlii-legal-research-behind-bars.

11Se 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.