Judicial Internet Research: Dr. Posner Faces Peer Review


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.

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“When in Doubt, Disclose”: Seventh Circuit Levies Sanctions for Undisclosed Class Conflict in Southwest Airlines Voucher Litigation


The Seventh Circuit’s message to the bar in Levitt v. Southwest Airlines Co. (In Re: Southwest Airlines Voucher Litigation), No. 13-3264 (7th Cir. Aug. 20, 2015), was “short and simple: when in doubt, disclose.” Slip Op. at 27.

The court delivered this message in an opinion by Judge David Hamilton, while meting out monetary sanctions for class counsel and one class representative, both of whom failed to disclose a conflict of interest. Considering that the failure to disclose could have led to rejection of the entire class settlement or to the court’s decertifying the class, the sanctioned parties should be relieved that they got off as lightly as they did.

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A Defendant Can Get Summary Judgment Without Producing Evidence


The Supreme Court explained in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), that a party can obtain for summary judgment when its opponent has no evidence to support an element of the opponent’s case. Justice Brennan’s dissent warned then that the opinion would “create confusion” among district courts. Fast forward nearly thirty years, and that “confusion” appears to be playing out. The Seventh Circuit’s recent decision in Spierer v. Rossman, No. 14-3171 (7th Cir. Aug. 14, 2015), written by Judge Manion, is the latest example.

The tragic events underlying the case began four years ago when, after a night of partying at Indiana University, Lauren Spierer went missing without a trace. Years later, Lauren’s fate and whereabouts still unknown, her parents sued the three classmates who were with her on the night of her disappearance. Lauren’s parents alleged that the classmates were negligent in supplying her with alcohol when she was already intoxicated and that their conduct violated Indiana’s Dram Shop Act.

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Dr. Posner Will See You Now: 7th Circuit Judges Reignite a Spirited Debate over Judicial Internet Research


The fat was really thrown into the fire in the Seventh Circuit yesterday on the long-mooted subject of the propriety of internet factual research by appellate courts.

Judge Richard Posner, who often chafes (both in opinions and extra-judicially) at what he sees as the “inadequacy” of the facts presented to the court by counsel and the propriety of appellate courts’ “supplementing” those facts with internet research, wrote the court’s opinion in Rowe v. Gibson, No. 14-3316 (7th Cir. Aug. 19, 2015).

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After Further Review: 7th Circuit Strikes Down Anti-Panhandling Law; Concurrence Muses on First Amendment’s Effect on Laws Restricting Speech on Religion, Abortion


What do panhandlers and pro-life demonstrators have in common? According to Circuit Judge Daniel Manion of the Seventh Circuit, the First Amendment now makes it tougher to silence the voice of either in the public square.

Last Friday, in Norton v. City of Springfield, No. 13-3581, Judge Frank Easterbrook, writing for the Seventh Circuit, found that an ordinance that prohibits panhandling in Springfield’s “downtown historic district” runs afoul of the First Amendment because it embodies content discrimination subject to strict scrutiny under the Supreme Court’s June 2015 decision in Reed v. Town of Gilbert, No. 13-502. (Springfield had not tried to justify the ordinance under that standard.) Specifically, the law restricts speech because of its content, barring oral requests for the immediate payment of money, while allowing signs asking for money and oral proposals for commercial transactions.

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