The Decline of “The Record”: A Comment on Posner
UVA Law Faculty Affiliations
Judge Posner's views about appellate advocacy and judicial decision-making are rich and complex, addressing numerous topics of interest and importance to lawyers and other judges.' His articulation of those views is candid and occasionally surprising, and I focus in this comment on one aspect of his views which may strike legal and judicial traditionalists as the most surprising of all—Judge Posner's assertion, without embarrassment or seeming reluctance, that he consults factual sources not to be found in the record from the trial court, nor discussed or argued below, nor referenced in the briefs of the parties, nor mentioned in oral argument. In engaging in his own factual research, Judge Posner is not alone. Justice Breyer appears to have been doing so for some years, to the occasional consternation of his Supreme Court col-leagues. And the phenomenon of independent research by appellate judges has become sufficiently widespread that it is beginning to generate academic commentary.' But Judge Posner is one of the first judges to describe and defend the practice,' and he has done so with typical candor and confidence. His remarks on his practice of independent appellate factual research and the larger phenomenon it exemplifies thus provides the ideal occasion to reflect on the practice, and on the way in which such research and its use, by taking appellate adjudication and opinion writing beyond the four corners of "the record," tells us much about what appellate practice has been, is now, and may become in the future.