What a Surprise! US Supreme Court Relies on Unsubstantiated Internet Facts

10 October 2014 Internet, IT & e-Discovery Blog Blog
Authors: Peter Vogel

We all know that “everything on the Internet is true” or at least as presented in Amicus (friend-of-the-court) briefs to the US Supreme Justices who have to figure “out how to distinguish between real facts and Internet facts.”  On August 27, 2014 Professor Allison Orr Larsen (College of William and Mary Law School) wrote a Virginia Law Review article entitled “The Trouble with Amicus Facts” stating that the “court is inundated with 11th-hour, untested, advocacy-motivated claims of factual expertise.”   Professor Larsen also wrote:

The Supreme Court may be hungry for more factual information than the parties can provide, but this Article argues the amicus brief (at least under current rules) is not the best place to find it. In a digital world where factual information is exceedingly easy to access, more amici than ever before can call themselves experts and seek to “educate” the Court on factual matters. In the 79 cases from last term, for example, 61 of them involved an amicus brief filed to supplement the Court’s factual understanding of the case.

The New York Times commented on Professor Larsen’s research:

Some of the factual assertions in recent amicus briefs would not pass muster in a high school research paper. But that has not stopped the Supreme Court from relying on them. Recent opinions have cited “facts” from amicus briefs that were backed up by blog posts, emails or nothing at all.

Supreme Court Regularly Researches on Google

After studying opinions over 15 years Professor Larsen concluded that Justices on the US Supreme Court regularly use Google since apparently Opinions issued by the Supreme Court cite facts never offered by the lawyers’ briefs in another article in the Virginia Law Review in 2012 entitled “Confronting Supreme Court Fact Finding.”

No surprises in either law review article, but why is this different than before the Internet?  Just because someone writes a book does not make it any truer than facts on the Internet.

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