Posner vs. Hamilton on Google-Happy Judges

Some perspectives are fated to clash. The maverick versus the establishment. The innovator versus the traditionalist. The fox versus the hedgehog. Google versus the good old library.

At the crossroads of these timeless affrays sits a recent opinion out of the Seventh Circuit, Rowe v. Gibson. This prisoner medical treatment case saw Judge Richard Posner and Judge David Hamilton issue spectacularly dueling opinions. While a wary concurrence from Judge Ilana Rovner broke the stalemate in petitioner Rowe’s favor, the main event was the Posner-Hamilton clash, and the question of whose perspective will eventually prevail is anything but settled.

The subject matter of the dispute? When and whether it is kosher for a judge to Google the answers to basic scientific questions that come up in the course of deciding a case.

It might sound to the lay reader like a molehill for all the mountain that was made of it. But the debate cuts straight to the heart of a whole welter of philosophical tensions in the American legal system. What is the role of a judge, and how much discretion do we trust them with? Does the collision of adverse litigants reliably illuminate the truth, and is it legitimate to reach for a technological light source if those sparks fail to fly? Just what is that “genuine issue of material fact” thing lawyers always go on about? And is it reversible error for a judge to use Bing rather than Google?1

The Facts

Jeffrey Rowe’s case concerns his attempts to secure adequate medical treatment during his incarceration. Rowe suffers from gastroesophagial reflux disease (GERD), which, if you’ve ever experienced severe heartburn, you know hurts like an expletive. Many people are okay with prisoners suffering daily, treatable, severe pain, but the Eighth Amendment is decidedly not; besides, untreated GERD can lead to serious illnesses, and I doubt even the staunchest cheerleaders for carceral sadism would feel comfortable with an esophageal cancer fatality on their conscience.

Law and basic human decency notwithstanding, the doctor and staff at the prison first refused to give him Zantac to take shortly before meals — the dosing schedule that would actually treat his pain with any effectiveness.

Next, they cut off his prescription altogether, reasoning that it was dangerous for him to use this over-the-counter drug continuously. In the same breath, they invited him to buy and use as much of it as he wanted at the prison commissary. You know, with all the with money he didn’t have.

Then (not yet having met his Kafka quota, apparently), the same prison doctor who originally prescribed Zantac to Rowe for his GERD reviewed his medical records and made a totally unexplained about-face, saying that Rowe had never needed Zantac for his GERD. After a month of leaving Rowe to suffer, the good doctor reinstated the prescription as a “courtesy.” This courtesy did not include allowing Rowe to take the pills before meal-times.

In their limited defense, prison officials appear never to have tried to actually transform him into a cockroach.

The Legal Proceedings

Rowe sued. This being a civil case brought by a prisoner, he had no lawyer, no expert witness on his side, and no money for either. The defendants moved for summary judgment, in effect telling the judge, “this joker brought no evidence to court except his bare allegation that he’s in pain; since he’s got no evidence, you have to flush his hopeless lawsuit.” The legalese here is that Rowe’s claim presented no genuine issue of material fact, entitling the prison to judgment in its favor as a matter of law. No trial, no jury, defense-side expert testimony only: final disposition.

Summary judgment issued in the prison’s favor. Rowe appealed to the Seventh Circuit.

Was there truly no question about prison officials’ deliberate indifference to Rowe’s suffering? The prison argued, of course there’s no issue: our doctor testifies he did everything right, and Rowe produced no evidence otherwise. Sometimes people are in terrible pain despite getting perfectly acceptable medical treatment. Rowe, they insisted, failed to show that his situation was any different.

The upsetting thing is, that’s true as far as it goes. But a genuine issue of material fact was a quick web search away.

Judge Posner’s opinion reversing summary judgment is replete with examples of the prison doctor saying things about Zantac that Posner’s clerks handily debunked with two seconds of Googling. To take just one, let’s look at the dosing schedule. The prison doctor saw no problem whatsoever with restricting Rowe’s Zantac times to 9:30am and 9:30pm, while his meal times were at 4am and 4pm (because prison, of course). Both the drug manufacturer’s website and the Mayo Clinic’s website plainly indicate that Zantac must be taken before a meal in order to prevent heartburn. Oops. The other examples are on a similarly basic level; you could turn anyone, expert or layperson2, loose on these issues for a short time and they would conclude “hmm, yeah, that doctor is full of hot air about this.”

Judge Posner explained that, viewed alongside his simple background research about Zantac, Rowe’s allegations were quite sufficient to create a genuine issue of material fact, entitling him to a full trial on his deliberate indifference claim against the doctor. Posner knew he would have to defend his background research — to his colleagues on the bench, most of all. He launched into a lengthy justification of his fact-checking practices, and, even more extraordinarily, included an appendix meticulously disputing parts of Judge Hamilton’s competing opinion! This dissent-to-the-dissent signals a deep, intractable jurisprudential dispute (and, of course, bespeaks a personality that relishes having the last word).

The Deeper Question

But why the fracas? Who’d think to bat an eye at a judge, like the rest of us mere mortals, popping open a new browser tab and consulting The Google?

At this point, some of our JD-holding readers will be jumping out of their skin to interject, “anyone with a healthy aversion to government tyranny, that’s who!” And they’re not wrong. The line connecting “I had my law clerk consult the Mayo Clinic’s website as a way of double-checking this fishy expert’s summary judgment victory” to “unaccountable black-robed autocrats deciding your fate by secret reference to Yahoo Answers without you having so much as an opportunity to cry foul” is very long and very thin … but it’s direct.

Judge Hamilton’s part-concurrence, part-dissent looks down the path to this Internet Star Chamber nightmare scenario and emphatically declares “this far! no farther!” His stand on principle here will be easier for non-lawyers to understand once we take stock of a few features of the American legal system.

First, our legal process is deeply adversarial. Judges, to crib from Chief Justice Roberts, are (ideally) mere umpires; although their judgment may significantly impact the outcome, their job is not to opine on which team “looked better” to them overall. The more judges stray from a neutral referee role, the more they obstruct a nice, clean fight. Your opponent should be at the counsel’s table, not up on the dais; there are necessary exceptions, but we strive to minimize them. Independent judicial fact-finding makes the judge more like a jury … and it’s a short step from jury to executioner, too.

Second, we want courts to function as transparently as possible. The life cycle of a case needs to unfold in open court. Whenever any element of the proceedings migrates behind closed doors, trouble looms. Fact-checking while writing up the opinion may seem harmless, but who ensures that the next judge will do it scrupulously or without bias? There’s just no oversight. Requiring all evidence to come into court solely via the litigants spares you these worries.

Finally, when it comes to legal procedure, if there’s an established way to do something, you do it that way rather than making up your own way. And there’s already a mechanism for introducing background facts: judicial notice. Federal Rule of Evidence 201 is pretty simple: a court can, either spontaneously or when asked, take judicial notice of a “fact that is not subject to reasonable dispute because it … can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” That’s pretty exacting language; it’s meant to make it rather difficult to judicially notice anything unless it’s utterly beyond dispute (e.g., “the Pacific is an ocean located between Asia and the Americas”). It’s stringent for good reason: once a fact is judicially noticed, it must be treated as conclusive. Nobody in the case can thereafter dispute it.

Judge Hamilton denounces Judge Posner’s internet research as contravening not only procedure, but venerable traditions of transparency and adversarialism. Posner counters by stressing that a penniless prisoner litigating against his jailor fights in such a lopsided contest that the adversarial ideal in such circumstances is a lost cause, if not a cruel farce. As for transparency, Posner does spell out his research methods in the opinion fastidiously. He cites to reputable, publicly available sources.

Both Posner and Hamilton agree that the internet research about Zantac couldn’t have been introduced by judicial notice, because it’s not completely indisputable. (It has to be indisputable by laypersons.) Posner sidesteps Hamilton’s thrust, arguing that the court needn’t characterize its research as conclusively true — merely as enough to create a genuine issue of material fact. And indeed, that is a pretty low bar.

My Take

For me, the nub of this case is the definition of “genuine issue of material fact.” Summary judgment is an axe for quickly decapitating absolutely hopeless lawsuits — ones that would waste the jury’s and the court’s time because they’re unwinnable. To see this David-against-Goliath claim snuffed out on day one, when some Google research would put a stone in the plaintiff’s slingshot … who wouldn’t cringe?

All of Judge Hamilton’s apprehensions are decidedly sensible, and I would probably concede that Judge Posner is moving a little far, a little fast-and-loose with internet research generally. Maybe this is a variation on the “hard cases make bad law” principle — extremely lopsided and unjust cases spawn bad exceptions to law. I don’t feel the urgency of Hamilton’s protestations deep in my belly, but I do think it wise, as a matter of institutional design, to carefully delimit and proceduralize judicial fact-finding. Improve it for the modern era, sure, but let’s recognize that Posner is playing with fire by innovating ex nihilo.

On the other hand, for this case, in its summary judgment posture, I believe Judge Posner has the better of the argument. Wiser commentators than myself have argued that, when in doubt, we should “just say no” (see especially 286-88) to adjudicating a case without a trial. Throw in the prisoner-litigation context, and the defendants’ initial win here seems a plainly lamentable triumph of wooden formalism over substantive justice. The poor man deserved his day in court and I rejoice that he will have it thanks to the Seventh Circuit’s helping hand. (As though judges don’t routinely relax the rules for pro se litigants anyway!)

Without ushering in an era of Trial by Search Engine, I think we can say that permitting a bit of Google-fu here was not only harmless but jurisprudentially virtuous — a win for mercy and equity. But I do hope Judges Posner and Hamilton continue to engage in spirited dialogue about the bigger issue. Posner is correct that we need a new category for easily searchable facts falling between judicial notice and traditional adversarial evidentiary process. Hamilton is wise to urge that judges approach any non-adversarial factfinding with fear and trembling, lest they help themselves to dangerous power. Somewhere between these jurists’ crossed pens is a wise policy, waiting to be pioneered.



1. That last one doesn’t actually come up in the case, but it’s only half in jest. Suppose a search engine were really bad and not just the convenient butt of tech-nerd jokes; what recourse would you have if a judge relied on it in deciding your case?

2. You might be wondering, if this was so easy to Google, why didn’t Rowe come up with it himself? Three reasons. First, you try doing internet research for your case while locked up in state prison, and get back to me about how that goes. Second, Rowe had no lawyer and no legal education, and thus no real way of knowing what evidence he was expected to bring to the table; can we really fault him for assuming that “my esophagus is a molten pyroclasm in a hyperbaric tube” would be enough to at least go to a jury? Finally, even if Rowe had managed to do this research, he is not a medical expert, and as a lay witness he is only permitted to speak from his own personal experience. It’s not impossible for him to have found some way of drawing the court’s attention to the facts about Zantac, but without a lawyer to help him understand a procedurally correct way to introduce it, he never really had a prayer.

1 Response to Posner vs. Hamilton on Google-Happy Judges
  1. How could one possibly not err on the side of Googling when the defendant, in this case, had virtually no mechanism for which he could present expert testimony? If one is staunchly anti-Google, should they not also take umbrage with the fact that the responsibility for such basic research fell onto the Judge and his loyal brigade of clerks?

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