Well, we've recovered from a little electronic snafu preventing subscribers from getting these missives, so everything should be back to working. As promised, here's a summary of my last AAAL conference, in Chicago. I'll start with Judge Posner's presentation.
He basically said that he's very big on looking at things outside the record. He noted that lawyers don't much like this position, because, he says, lawyers like to be in control. He said that it's not like the record is reliable, because he starts from the perspective that all witnesses are lying, and he said that he has little faith in the adversarial system (yes, he said that, I was taking notes). He then gave some examples of some appeals and explained how he and his clerks did their own internet research to come up with their results.
He also said that he likes visual images, not verbal descriptions, so if you don't want him looking around for those images, you should give it to him in the first place. He observed that he's never had a petition for rehearing arguing that the court had relied upon something that the party had no chance to respond to and saying that they wanted that opportunity, but if that ever happened, then ok, he'd entertain such an argument.
Now maybe he was trying to be provocative, and another Seventh Circuit Judge (senior Judge Bauer) basically said, in a polite way, that other members of the court may not share Judge Posner's views. Nevertheless, I find his perspective troubling.
First, with an actively investigatory appellate court, you may have no idea what that court looked at, and so you don't have the necessary information to object (after the fact, in a petition for rehearing, which isn't exactly a happy posture to find yourself in the first place). Unless the court cites everything it looked at, you are out of luck to even make an argument.
Second, Judge Posner may be right that the adversarial system has its flaws, but it's like democracy -not perfect, but better than any other system. A system where each judge mans their computer and sees what s/he comes up with doesn't seem better to me.
The thought that appellate judges might be wandering around the internet researching facts, then deciding what's really true as opposed to what the record says fills me with angst on many levels. The scope of an appellate court's review is limited. Perhaps judges who have been on the bench for many years get a little bored with what they are supposed to be doing, and wander afield. Certainly Judge Posner has shown that he has a lot of energy, in producing many books, for example.
I hope that he and other like minded judges expend that abundance of energy on the treatise-writing front (or how about a novel?) instead of re-trying the case below.