Last month, we wrote about the Seventh Circuit’s decision in Rowe v. Gibson, No. 14-3316 (Aug. 19, 2015), a decision written by Judge Richard Posner that created considerable controversy regarding the propriety of internet factual research by appellate courts. Now it appears that Judge Posner’s colleagues will have the opportunity to critique his methodology.
Judge Posner relied on publicly available information on the web concerning the effects and use of Zantac to conclude that the district court in Rowe should not have granted summary judgment in favor of the defendants in an Eighth Amendment claim, where the plaintiff alleged that prison officials had been deliberately indifferent to his esophagus condition by imposing certain restrictions on his Zantac prescription. Judge Ilana Rovner wrote a concurrence in which she agreed with the result, though not with Judge Posner’s use of internet research, and Judge David Hamilton wrote a dissent in which he described Judge Posner’s decision as “an unprecedented departure from the proper role of an appellate court.”
The debate appears far from over, and it might even continue in Rowe itself.