Monday, September 30, 2013
My co-author Andrew Ferguson (University of the District of Columbia - David A. Clarke School of Law) and I have posted a draft of our forthcoming article, Trial by Google: Judicial Notice in the Information Age, on SSRN. It is available here. Comments and suggestions are welcome.
The article explores the emerging phenomenon of courts taking judicial notice of facts gleaned from Internet web sites, like Google Maps. It highlights the inviting and terrifying intersection of venerable judicial notice doctrine and the Internet, and ultimately suggests guidelines for courts applying Federal Rule of Evidence 201 (Judicial Notice) and state analogues to Internet sources.
Here is the abstract:
This Article presents a theory of judicial notice for the information age. It argues that the ease of accessing factual data on the Internet allows judges and litigants to expand the use of judicial notice in ways that raise significant concerns about admissibility, reliability, and fair process. State and federal courts are already applying the surprisingly pliant judicial notice rules to bring websites ranging from Google Maps to Wikipedia into the courtroom, and these decisions will only increase in frequency in coming years. This rapidly emerging judicial phenomenon is notable for its ad hoc and conclusory nature – attributes that have the potential to undermine the integrity of the factfinding process. The theory proposed here, which is the first attempt to conceptualize judicial notice in the information age, remedies these potential failings by setting forth both an analytical framework for decision, as well as a process for how courts should memorialize rulings on the propriety of taking judicial notice of Internet sources to allow meaningful review.