Information is central to the litigation before America’s courts. Every day they’re in session, courts wrestle not just with interpretations of the law, but with the facts of the cases themselves. Yet legal scholar Frederick Schauer argues that the way our court system is structured makes it “more difficult for [judges and juries] to obtain the information they need than it is for most other public decision-making institutions.”
The courts, writes Schauer, are “informationally disabled.” And since the higher courts essentially make policy affecting all our lives, this may be a big problem.
Every case results in a decision, what Schauner calls the “output.” What he’s concerned with is the “input”—the world of facts. From criminal courts through the appellate system to the final arbitrator, the Supreme Court, decisions are based on the “seemingly mundane factual questions that comprise most of what [judges and juries] do: determining just who did what; and how, why, and when they did it.”
Among such facts are many complicated “scientific, technical, financial” ones. Neither judges nor juries are, generally, experts in such matters. So, are courts “equipped to make the factual determinations that have important consequences for individual litigants and, increasingly, for social policy as well”?
Schauner has five reasons for thinking that courts may, in fact, not be “suited to the task of adequate factual determination”:
- The rules of evidence. Because of our common law heritage, the typical trial “continues to exclude a large amount of information that historians, journalists, detectives, and anyone else trying to make a factual determination would likely consider relevant to their inquiries.”
- The adversarial judicial process itself may not be the best way of evaluating contested factual questions. A court is not a laboratory nor a controlled clinical trial. It’s also not a “persistent investigation,” expanding into new “avenues of inquiry” as the evidence grows.
- Courts don’t investigate, observe or experiment on their own; they deal with strictly secondhand information. Yet we now know that there are many issues of reliability with human perception and recollection. “Cross-examination is a far less effective method of exposing error in real life than it is on television.”
- “The limited and at times artificially constrained domain of inquiry” of a case. The fact-finder(s)—the judge or the jury—are not supposed go outside the court and “look for what may appear to be relevant information.” At the appellate level, judges are expected to limit themselves to the record received from the court below, not do any new exploration on their own.Schauner notes that a few judges who have made a point of going outside the record to look up “issues of scientific and technical facts.” In one instance on the Supreme Court, Justice Scalia “chastised Justice Breyer for relaying on sources that were nowhere found in the record of the case.” Breyer’s sources were the large number of social science studies on the issue at hand, information many outside the hermeneutical world of the courts might very well consider relevant.
- When courts make “policy about such salient issues as products liability, affirmative action, environmental harm, and insider trading, among many others” they do so based on individual cases which may not be at all “representative of the range of events that policies will cover.”
These “restrictions on the access to and evaluation of information” all have their justifications, notes Schauner, “some better than others.” That courts are “systemically informationally disabled is thus not necessarily or always to be lamented,” he writes. But when considering the “role of the courts in decision-making and policy-making,” we need to take into account “[t]he way in which courts (when compared to individuals, institutions, and other decision-making bodies) operate under procedures and traditions that produce a systematically and predictably information-poor decision-making environment.”