Judicial Notice in the Information Age

My co-author Andrew Ferguson (University of the District ofColumbia – David A. Clarke School of Law) and I have posted a draft of our forthcomingarticle, 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 courtstaking judicial notice of facts gleaned from Internet web sites, like GoogleMaps.  It highlights the inviting andterrifying intersection of venerable judicial notice doctrine and the Internet,and ultimately suggests guidelines for courts applying Federal Rule of Evidence201 (Judicial Notice) and state analogues to Internet sources.

Here is the abstract:

This Article presents a theory of judicial notice for theinformation age. It argues that the ease of accessing factual data on theInternet allows judges and litigants to expand the use of judicial notice inways that raise significant concerns about admissibility, reliability, and fairprocess. State and federal courts are already applying the surprisingly pliantjudicial notice rules to bring websites ranging from Google Maps to Wikipediainto the courtroom, and these decisions will only increase in frequency incoming years. This rapidly emerging judicial phenomenon is notable for its adhoc and conclusory nature – attributes that have the potential to undermine theintegrity of the factfinding process. The theory proposed here, which is thefirst attempt to conceptualize judicial notice in the information age, remediesthese potential failings by setting forth both an analytical framework fordecision, as well as a process for how courts should memorialize rulings on thepropriety of taking judicial notice of Internet sources to allow meaningful review.

– JB