Mincing no words, in response to a question from Frederick Schauer, Judge Posner explains that our “adversary system is overrated,” and this justifies him looking outside the record.
Professor Frederick Schauer: You tend to go beyond the record, the briefs, and oral argument more often than most appellate judges, and you have noted that you have been criticized for it. Could you explain your practice, explain the criticism, and explain why you think the criticism misses the mark?
Judge Posner: I find that the briefs and arguments, and lower-court opinions, very often do not answer the questions that I think are important to a sound understanding of the case. So, I look for the answers, often by an Internet search. I tell lawyers if you don’t like me doing that, do it yourselves. I do try to be sensitive to risk of error in judicial fact research. I understand the criticism, because the lawyers want to control the case. They invoke the glories of the adversary system. I think the adversary system is overrated. Not that I want to convert to the inquisitorial system that prevails in Europe (except the U.K.) and most of the rest of the world, but I want to see the adversary system taken down a peg. I am a big fan of Fed. R. Evid. §706, which allows a judge to appoint his own expert witness, as opposed to having to depend entirely on party experts.
Correct me if I’m wrong, but Rule 706 only applies to District Judges, not Circuit Judges? But do you know what rule is relevant? As Chief Judge Wood pointed out in her dissent from Judge Posner’s fashion show, he neglects Federal Rule of Civil Procedure 56 concerning the standard for summary judgment:
I am startled, to say the least, to think that an appellate court would resolve such a dispute based on a post‐ argument experiment conducted in chambers by a judge. Ante at 9–10. As the majority concedes, this cannot be con‐ sidered as evidence in the case. To the extent (even slight) that the court is relying on this experiment to resolve a dis‐ puted issue of fact, I believe that it has strayed beyond the boundaries established by Federal Rule of Civil Procedure 56. (This is quite different, it seems to me, from including an illustrative photograph whose accuracy presumably could not be contested.) I note as well that this experiment pro‐ ceeded on the assumption that washing is not essential for workers handling raw poultry—an assumption I have al‐ ready shown to be inconsistent with government regulations for hygiene within a meat processing plant.
I always appreciate Judge Posner’s candor, even if I do not agree with his view. It makes it a lot easier to have an informed discussion when we know what he really thinks.