A 'Body of Precedent Written on the Wind?': Wiki Courts, 'Link Rot,' and Independent Judicial Internet Research

• Author: Karen Eltis
• Profession: University of Ottawa Columbia Law School
• Pages: 18-49

18

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 — needless to say — a vital ethical principle,2 thus rendering

judicial comfort with basic precepts of technology essential in this web-

dependent society.3 According to the Canadian Judicial C ouncil’s Ethical

Principles for Judges: “Judges should take reasonable steps to maintain and

enhance the knowledge, skil ls and personal qualities necessary for judi-

cia l o c e.”4 Likewise, t he ABA model rules provide that, “A judge shall

1 Judicial Conference of the United States.

2 jura novit curia - la cour connaît le droit (“the court knows the law,” sometimes

translated as “the court knows the lay” ). For an in-depth discussion, see Douglas

Brooker, “Va Savoir! - The Adage ‘Jura Novit Curia’ in Contemporary France” (Be-

press Legal Series, Paper 845, 2005) [Brooker], online: http: //law.bepress.com/cgi/

viewcontent.cgi?article=4295&context=expresso. O f course, as Mashaw cautions:

“M any arguments about judicial competence are vague about their normative

foundations because ‘competence’ can convey a concern for either ‘authorit y’ or

‘capacit y.’ Because ‘capacity’ is also a functionalist argument for allocating

‘authorit y,’ this conceptual confusion seems almost inherent in the interpretive

debate.” See Jerry Mashaw, “Between Facts and N orms: Agency Statutory Inter-

pretation” (2005) 55 UTLJ 497 at 502.

3 See David H Tennant & Laurie M Seal, “Judicial Ethics and the Internet: May

Judges Search the Internet in Evaluating and Decidin g a Case?” (2005) 16:2 The

Professional Lawyer [Tennant & Seal], online: http://www.abanet.org/judicialeth-

ics/resources/TPL_jethics_internet.pdf.

4 Canadian Judicial Council, Ethical Principles for Judges (Ottawa, 1998), Principle

4(2): Diligence.

A “Body of Precedent Written on the Wind?” 19

perform judicial and administrative duties competently and diligently,”5

noting that “[c]ompetence in t he performance of judicial duties requires

the legal knowledge, sk ill, t horoughness , and prepar ation reasonably

necessary 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 cogn izant of and

sensitive to social context.7 In today’s reality, that cannot but include oen-

intricate concepts, which the “experts” themselves have yet to address,

let alone resolve .

As Elizabeth ornburg correc tly notes in her enlightening article on point:

[J]udges in the twenty-rst century  nd themselves in a world where

litigation — both civil and cr iminal — involves a vast arr ay 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 wi ll be relevant to those disputes . . . . C ourts are asked

to decide questions such as: whether med icine can eliminate the risk of

dying in severe pai n; whether psychologists can predic t future danger-

ousness; whether punish ments deter crime; whether bui lding projects

threaten wild life; and whether exp osure to various chemical s creates a

risk of public injuries or death. A n appellate court, ordinarily bou nd by

a case’s trial court record, m ight want information outside the record

because an issue is ver y dicult, or becaus e the record is inadequate,

especially i f one party had far superior resou rces leading 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 searches but only the clic k of a mouse. When judges feel

the need for additional inform ation, the easy availabi lity of the Inter-

net is a powerful temptation8. is combi nation of felt need and ready

5 ABA Model Code of Judicial Conduct, Rule 2.5(A), (February 2007) [ABA Model Code],

online: www.judicial-ethics.umontreal.ca/en/codes%20enonces%20deonto/

documents/CodeABA.pdf.

6 Ibid, comments to Rule 2.5.

7 “Lawyers and academics can help th e judiciary along this path with their legal

arguments and writings, but in the end the judg es have to make the decisions.

They must be enlightened decisions, aware of the so cial fabric of our time, with

our nger on the pulse of humanity.”: see Constance R Glube, former Chief Jus-

tice of Nova Scotia, in her essay “The Role of the Ju dge” in Rosalie Abella & Melvin

Rothman, eds, Justice beyond Orwell (Montreal: Yvon Blais Inc., 1985) at 486.

8 Take, for e xample, the (social security benets denial) case of Pu rvis v Commission-

er of Social Security, 2011 WL 741234 (DNJ 23 February 2011) where the presiding

Courts, Litigants and the Digital Age: L aw, Ethics and Practice

20

access has turned a once-ma rginal concern into a dilemma that aec ts

courts and litiga nts daily. e problem of judicial research has a lways

been with us, lurk ing in the margins, a nd 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, becaus e it is now

taking on a centr al importance to proper judicia l decision-making in

an increasing number of ca ses.9

Unmistakably — and whilst the exact deg ree of requisite expertise remains

to be determined — judges must possess some understanding of the fun-

damental notions of science and technology in order to grasp the related

issues permeating cases and to adequately lter and as sess evidence. ey

must at the same time avoid excessive reliance on and disclosure to sup-

port sta or even expert testimony, which can be problematic and threat-

en their independence to a certain degree.10

Not surprisingly then, as Justice omas Moyer correctly observes:

“courts have . . . been forced to react, oen without the requisite scien-

tic traini ng or education; forced to make an informed decision regarding

whether scientic evidence is a cutting-edge breakthrough or what has

been called “ junk science,” oentimes even prior to the expert commun-

ity itsel f.”11

A more recent and well-known example coming to us from the United

States is that of the childhood vaccine controversy. An American judge

was unenviably forced to rule in a case where parents alleged an i ngredi-

judge visited the plainti’s Facebook page on her own initiative to discover what

appeared to be the plainti smoking. Sai d the judge:

. . . altho ugh the Court remands the ALJ’s decision for a more detailed nd ing,

it notes that in the course of its own research, it discovered one prole p icture

on what is believed to be Plainti’s Facebook page where she appear s to be

smoking. Prole Pictures by Theresa Pur vis, Facebook, [link omitted because

it’s broken] (last visited Feb. 16, 2011). If accurately depicted, Plainti’s cred-

ibility is justiably suspect.

9 Elizabeth G Thornburg, “The Curious Appellate Judge: Ethic al Limits on In-

dependent Research” (2008) 28:1 Rev Litig 131 (Lexis) [Thornburg].

10 And in order to avoid situations such as that of an English judge who informed

the parties before him that he did not k now what a website was. See Lewis Page,

“Judge in Tech Trial Says He Doesn’t Know What Website Is” The Register (17 May

2007), online: www.theregister.co.uk/2007/05/17/judge_website _shocker/.

11 US Supreme Cour t Justice Steven Breyer once observed: “A judge is not a scien-

tist, and a courtroom is not a scientic labor atory,” . . . “but to do our legal job

properly, we [need] to develop an informed, although necessa rily approximate,

understanding of the state of that relevant sci entic art,” cited in CJ Thomas

Moyer & Stephen P Anway, “Biotechnology and the Bar: A Response to the G row-

ing Divide between Science and th e Legal Environment” (2007) 22 Berkeley Tech

LJ 671 at 673.