The Row over Rowe: What to Do with Facts “Between” the Record

Download a printable PDF of this article.

The debate over the propriety of judges conducting their own research into the facts surrounding a case is nothing new. The argument has, however, heated up in recent years as the Internet has removed barriers to accessing evidentiary information, tempting more and more judges to look to external sources to better understand the facts of the disputes before them. Gone are the days when a judge or a law clerk could satisfy her curiosity only through hours of laborious research in a library or by visiting the scene of an occurrence. A world of information is now rarely more than a keystroke away. This new reality has already transformed the practice of law in innumerable ways, more or less without great controversy. But no similar consensus has formed around the judiciary’s use of the same evidentiary tools.

The Seventh Circuit’s recent decision in Rowe v. Gibson, 798 F.3d 622 (7th Cir. 2015), shines a spotlight on this debate. Judge Richard Posner admonishes in Rowe that we should not “fetishize adversary procedure” by refusing to look at facts beyond the record, prompting a rebuke from Judge David Hamilton that the decision was “unprecedented” and “clearly based on ‘evidence’ this appellate court has found by its own internet research.” Id. at 629, 636 (Hamilton, J., concurring in part and dissenting in part).

Rowe is the latest and perhaps most glaring example of an argument that may in time reshape our conception of evidence and of the judiciary’s role in our legal system. One side accuses the other of willfully ignoring reality and using legal “formalism” to avoid difficult decisions, while the other charges the accusers with undermining the basic tenets on which our adversarial system is based. Both sides, of course, believe that their approach promotes greater justice and better protects the public’s faith in the judiciary and the rule of law.

It may be impossible to determine now, at this moment of potential transformation, which side is right. It may be that there is no right and wrong, given that each side advances a different philosophy about how truth is best found. Both approaches offer significant advantages and disadvantages. Even so, and no matter which side you favor, understanding how the debate is shaping the practice of law generally, and evidentiary expectations specifically, is vital for both trial and appellate practitioners.