An article soon to be published in the Virginia Law Review caught the eye of the Boston Globe, from where it came to my attention. In “Confronting Supreme Court Fact Finding” Alli Orr Larsen criticizes US Supreme Court judges for doing internet research on their own in order to supply legislative facts they feel are needed to resolve a case. I must say I hadn’t appreciated the degree to which, facilitated by the ease of access to data on the internet, the justices do this supplementary fact finding on their own.
The issue isn’t new, of course — couldn’t be new, because it’s built into the nature of language and the kinds of knowledge we have access to, which range from tacit to explicit (or unconscious to conscious, on the awareness scale). Obviously, you need a huge amount of knowledge about the way the world functions in order to work effectively as a judge, most of which is tacit knowlege that operates outside of our awareness. Then, as most everyone will agree, there’s a swath of cultural and gender knowledge that judges bring to bear, often unconsciously, when deciding cases, which is one reason why we make a stab at diversifying the bench. From here we try to divide facts, which is to say necessary explicit, conscious knowledge, into adjudicative facts and legislative facts. Usually the former are proved by evidence, though the doctrine of judicial notice permits judges to find certain facts independent of proof. The Civil Code of Quebec on the point is illustrative of the rule generally, perhaps:
2808. Judicial notice shall be taken of any fact that is so generally known that it cannot reasonably be questioned.
. . .
2810. The court may, in any matter, take judicial notice of the facts in dispute in the presence of the parties or where the parties have been duly called. It may make any verifications it considers necessary and go to the scene, if need be.
It’s the rare legislative fact that could not be reasonably questioned. Yet in the US federal system legislative facts are specifically exempted from any constraints that might apply to judicial notice of adjudicative facts. Yet these slippery (and clumsy) handles on the ways of the world can be critical in resolving large and societally difficult issues. A few examples taken from Larsen will illustrate both the importance of the questions and the current court practice:
- . . . Citing a Youtube video, [Justice Breyer] explained that filters on these video games are easy to evade since “it takes only a quick search of the Internet to find guides explaining how to circumvent any such technological controls.” . . .
- . . Justice Thomas’s dissent in the same case cites 59 sources to establish the fact that the founding generation believed parents had complete authority over their children’s development. . . .
- . . . Justice Kennedy and Justice Thomas (in concurrence) then recite statistics about the injury and fatality rates connected with vehicular flight. The data they discuss come from studies that were not part of the record below, or specific to the Indiana law in question. . . .
The picture in Canada is a little different, from what I can tell, though I’m no expert at all. Here there appears to be a good deal of caution, not to say reluctance, on the part of judges when it comes to doing their own research with respect to legislative facts. It’s difficult to present a synoptic view, given the variety of the procedures and issues judges are faced with: trials, appeals, references (trial and appeal), constitutional questions (Charter and non-Charter), each presents its own limitations and opportunities. But if the issue interests you, you could do much worse than to read Chief Justice Bauman’s recent decision in Reference re: Section 293 of the Criminal Code of Canada 2011 BCSC 1588 (the polygamy reference), particularly Part III. Evidentiary Issues. That case was a trial reference which allowed for the taking of expert evidence as to legislative facts (the only kind in issue); but the court canvasses briefly the broader issues of the sort raised above.
Still, Canadian caution can’t obviate the problem here. Judges live in this world; they read and research out of interest, if not in pursuit of specific legislative facts. How frustrating it must be to come to a crux in a decision and find a piece of the puzzle missing; how easy to look up the answer.
And how difficult, too, at times: my own exceedingly poor grasp of statistics makes me realize that even when the information is the product of scientific inquiry and, so, trustworthy, understanding its limitations (hence its real import) is no easy matter. I tend, then, to favour the approach suggested by Larsen, which essentially sees the creation of a strong(er) research team available to the courts, ensuring that librarian-researchers expert in statistics and scientific method can provide judges with the answers to legislative questions insofar as may be possible.
All this says nothing about the role of the parties, of course, which is a further set of difficult issues—for another time.