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In a new article in the Virginia Law Review, titled “The Trouble with Amicus Facts,” Alli Orr Larsen continues her important series of work on the “facts” relied on by the Supreme Court here is the abstract:

The number of amicus curiae briefs filed at the Supreme Court is at an all-time high. Most observers, and even some of the Justices, believe that the best of these briefs are filed to supplement the Court’s understanding of facts. Supreme Court decisions quite often turn on generalized facts about the way the world works (Do violent video games harm children? Is a partial birth abortion ever medically necessary?) and to answer these questions the Justices are hungry for more information than the parties and the record can provide. The consensus is that amicus briefs helpfully add factual expertise to the Court’s decision-making.

The goal of this article is to chip away at that conventional wisdom. The trouble with amicus facts, I argue, is that today anyone can claim to be a factual expert. With the Internet, factual information is easily found and cheaply manufactured. Moreover, the amicus curiae has evolved significantly from its origin as an impartial “friend of the court.” Facts submitted by amici are now funneled through the screen of advocacy. The result is that the Court is inundated with eleventh-hour, untested, advocacy-motivated claims of factual expertise. And the Justices are listening. This article looks at the instances in recent years when a Supreme Court Justice cites an amicus for a statement of fact. It describes the way the brief, rather than the underlying factual source, is cited as authority and the failure of the parties to act as an adequate check. I challenge this process as potentially infecting the Supreme Court’s decisions with unreliable evidence, and I make suggestions for ways to reform it. It is time to rethink the expertise-providing role of the Supreme Court amicus and to refashion this old tool for the new purpose to which it is currently being used.

And from the article:

And the Court is attempting to do so. My research shows that one in every five citations to amicus briefs by the Justices in the last five years was used to support a factual claim– something I define as a theoretically falsifiable observation about the world. Of those citations, several surprising patterns emerge. Less than a third of the factual claims credited by the Court were contested by the party briefs. And more than two thirds of the time the Justice citing the amicus brief for a fact cites only the amicus brief as authority – not any accompanying study or journal citation from within the brief. This indicates that the Justices are using these briefs as more than a research tool. The briefs themselves ARE the factual authorities, and the amici are the experts.  …

This change matters because the studies and statistics and articles marshaled by these groups to support factual assertions are selected by those with a “dog in the fight.” The factual sources are chosen by amici, in other words, for reasons other than that they are the most peer-reviewed, industry standard, most accurate state of our knowledge today. And with the vast amount of information and studies available online now, it is not hard to assemble evidence to support a pre-existing point of view.22

Obamacare’s magical “tax” reared its ugly head in Hobby Lobby, courtesy of Justice Sotomayor.

First, she said the tax at issue was a lot less than the penalty in Obamacare–or is it a tax!

But isn’t there another choice nobody talks about, which is paying the tax, which is a lot less than a penalty and a lot less than ­­ than the cost of health insurance at all? These employers could choose not to give health insurance and pay not that high a penalty ­­– not that high a tax.

Later, she and the Chief Justice had some fun about whether it was a penalty or tax.

JUSTICE SOTOMAYOR: It’s not called a penalty. It’s called a tax. And it’s calibrated ­­ and it’s calibrated ­­ CHIEF JUSTICE ROBERTS: She’s right about that. (Laughter.)

Too soon Chief, too soon.

To be precise, in this context, it is a penalty, because the saving construction in NFIB only applied to the individual mandate, not the employer mandate.

Clement responded, perfectly.

MR. CLEMENT: And it has been treated for some purposes as a penalty. And I think for this purposes, it certainly feels punitive. And if I could finish the thought about why it’s a false comparison…

And in the process, Kagan (subtly) noted that many employers are dumping their employees onto the exchanges by cancelling coverage.

There are employers all over the United States that are doing this voluntarily because they think that it’s less.

One of my favorite aspects of reading a Paul Clement argument transcript is to marvel at how disciplined he is. It looks so natural, but his answers are so well designed. You can see this clearly when he uses the same locutions over and over again. I previously commented on his “Rule of Two” (everything has two answers).

In Hobby Lobby, his favorite catch-phrase was that Congress “could not be clearer” with their intent when designing RFRA. I found three cites:

MR. CLEMENT: Well ­­ well, Justice Kagan, nothing could be clearer than when Congress passed RFRA Congress made a judgment that RFRA was going to apply to all manner of Federal statutes. And I think what the Congress ­­

MR. CLEMENT: Well, Justice Ginsburg . . . Congress could not have been clearer that it was passing a statute that it wanted to apply to all preexisting statutes and to all subsequent statutes unless Congress specifically provided otherwise.

MR. CLEMENT: Well, Justice Ginsburg . . . that amendment was rejected and the House report that demonstrates the rejection of that amendment could not be clearer that they understood that for­ profit corporations would be covered.

Here is another great article that focuses on how courts can contend with parties supplementing briefs with internet facts, often not in the record. “Trial by Google: Judicial Notice in the Information Age” forthcoming in the Northwestern Law Review:

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.

This article presents a theory of judicial notice for the information age. It argues that the ease of accessing factual data now available on the Internet will allow judges and litigants to expand the use of judicial notice in ways that raise significant concerns about admissibility, reliability, and fair process.9 The factual reliability of the Internet is not uniform. Certain information sources from government websites, mapping services, or official reporting agencies may be sufficiently accurate, and thus ―admissible‖ under judicial notice doctrine.10 Certain other sources, built by anonymous contributors, or aggregating information may be much less accurate.11 Drawing those lines about accurate sources will in the first instance be left to trial judges, ill-equipped to make decisions under the time pressures of trial.12 Further, appellate courts will be unable to examine these choices without an established process for evaluating and recording those evidentiary decisions.13 The theory proposed here addresses these uncertainties by setting forth both an analytical framework for decision, as well as a set process for how courts should record and memorialize that decision.

This article develops a decisional framework for judges, litigants, and scholars as to how to evaluate the appropriateness of judicial notice of adjudicative facts obtained on the Internet (and through other social media information sources). It is a framework informed by the principles already established in the Federal Rules of Evidence including, of course, the rule that specifically governs judicial notice, Rule 201. Concerns for reliability, authenticity, ―best evidence‖ and the proper judicial role in an adversary

system run throughout the Federal Rules, establishing preferences for certain forms of evidence over others and procedures for evaluating admissibility.14 Efficiency is clearly prized in the rules, reflecting Holmes‘s famous ―concession to the shortness of life,‖ but not to the exclusion of other concerns, such as a distrust of hearsay, a preference of adversarial, not inquisitorial, presentation and the importance of due process.15 These conflicting, but fundamental principles ground the core of our approach to solving questions of judicial notice in an information era.

In assessing whether, in the language of Rule 201, a source proffered as worthy of judicial notice is one whose ―accuracy cannot reasonably be questioned,‖ courts should look to three factors: (1) knowledge of the subject matter; (2) independence from relevant bias; and (3) motivation to ensure accuracy of the posted information.16 As applied, these framing principles avoid creating a static definition of acceptable sources. In an ever-evolving technological medium, identifying particular websites or information sources is less valuable than developing a theory of how to evaluate the sources at issue. It is a theory that can adapt to the changes of even more expansive information sources that will likely be available in the next decades.

On Thursday, March 27 I will be giving a book talk at noon at the Conrad Indianapolis. On Friday, March 28, I will be speaking at the University of Indiana at Bloomington Mauer School of Law. I hope to see you there!