Judicial Opinions as "Minefields of Misinformation"

One of my recent e-mails from SSRN included an abstract of a working paper by Jacob Jacoby (NYU – Stern School of Business), entitled Judicial Opinions as “Minefields of Misinformation”: Antecedents, Consequences, and Remedies. His point of departure is Richard Posner’s observation, in The Problems of Jurisprudence, that “[i]f factual uncertainty is disproportionately characteristic of litigated cases (from which the reported cases are drawn), then, given the difficulty of dispelling such uncertainty by the methods of litigation, we can expect the factual recitals in published judicial opinions to be wrong much of the time.” (210) Jacoby notes (correctly, I think) that this hypothesis remains to be tested.

The most valuable part of the paper, from my perspective, comes in its lengthy study of erroneous factual recitals in the context of a single case. (It’s worth noting, though, that Jacoby served as an expert witness in the case in question, and many of the erroneous factual recitals he identifies concern him and have been used against him as a witness in subsequent cases, such that he’s not a disinterested observer by any means.) Jacoby also identifies some of the consequences that might flow from erroneous factual recitals, and discusses potential mechanisms of remediation. Before publication of opinions, he largely counsels judges to double-check their own work and the work of others. After publication, he calls for the adoption of a system for publishing errata, and proposes a number of ways in which such a system could be implemented.

This is a topic that I find extremely interesting, and that falls well within the scope of my recent scholarly endeavors. To turn this post in a more expressly self-serving direction, I’ve recently proposed, for example, that the sorts of problems that Jacoby addresses could be regulated to some extent through the use of what I call “framing arguments.” The basic idea is that judicial opinions ought to include the parties’ own statements of the issues before the court, which would discipline courts to stick more closely to the resolution of the dispute before them as the parties conceive of it. (I’ve also argued for the normative desirability of such an approach to judging.)