Competing opinions in a ruling yesterday by a divided Seventh Circuit panel (in Rowe v. Gibson) present a very interesting debate over when and whether it’s appropriate for a judge to supplement the factual record in a case by the judge’s own independent research.
As Josh Blackman puts it, Judge Richard A. Posner is the “most flagrant and brazen offender” of the rules limiting outside-the-record judicial factfinding, so it’s no surprise that he’s the author of the majority opinion that relies on evidence from “highly reputable medical websites” to reinstate a prisoner’s claim that prison officials were deliberately indifferent to his serious medical need. Posner acknowledges that the supposed facts that he gleans from those websites don’t meet the standard for judicial notice, but he evidently imagines that he has authority to invent a new standard, lest the usual reliance on adversary procedure be “fetishize[d].”
I’ll confess my surprise that the author of the dissent, which Posner regards as “heartless,” is Obama appointee David Hamilton. Hamilton argues at length that Posner’s approach “is an unprecedented departure from the proper role of an appellate court .…, runs contrary to long-established law and raises a host of practical problems.” He also takes issue with Posner’s reading of the medical websites.
I won’t try to summarize more here, but will instead have to leave it to interested readers to sort through the debate. (Blackman’s post guides the reader through very extensive excerpts.)