Much Ado About Nothing: The Defense of Judge Posner’s Internet Research

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All the briefs are filed, and the next step in the saga of Rowe v. Gibson, No. 14-3316 (Aug. 19, 2015), is for the nine judges in regular active service on the Seventh Circuit to cast their votes in favor of or against rehearing the case en banc.

We first wrote in August about Rowe, a decision written by Judge Richard Posner that created considerable controversy regarding the propriety of internet factual research by appellate courts. In short, Judge Posner relied on publicly available information on the web concerning the effects and use of Zantac to conclude that the district court should not have granted summary judgment in favor of the defendants in an Eighth Amendment claim. The use of that internet research sparked the controversy, beginning with one of the members of the panel in Rowe, Judge David Hamilton, who wrote a strong dissent. The third member of the panel, Judge Ilana Rovner, concurred in the result, but not in Judge Posner’s surfing the web.

Rowe first appeared pro se, but the court appointed counsel to represent Rowe and to file a response after the defendants filed a petition for rehearing en banc in September (see our post here). Rowe filed that response on Monday.

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The Seventh Circuit Applies the Erie Doctrine to Minor Settlements

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For the purposes of the Erie doctrine, which directs federal courts sitting in diversity to apply state substantive law and federal procedural rules, “damages law is substantive law,” and that includes the law that governs judicial approval of settlements with minors, according to In re Williams, Bax & Saltzman, P.C., No. 13-2434 (Nov. 5, 2015), a recent decision from the Seventh Circuit written by Judge Diane S. Sykes.*

In so holding, the Seventh Circuit joined a handful of other federal courts that have reached the same conclusion.

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Judicial Internet Research: Does the First SCOTUS Decision of OT 2015 Bode Ill for Dr. Posner?

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Regular readers of our blog likely are familiar with the Seventh Circuit’s recent decision in Rowe v. Gibson, No. 14-3316 (Aug. 19, 2015), and the considerable controversy that Judge Richard Posner created regarding the propriety of internet factual research by appellate courts. In short, Judge Posner relied on publicly available information on the web concerning the effects and use of Zantac to conclude that the district court should not have granted summary judgment in favor of the defendants in an Eighth Amendment claim.

The parties in Rowe currently are briefing the issue of whether the case should be heard en banc (see our post here), and we’ve suggested (here and in other forums) that this issue might be ripe for review—not only by all judges of the Seventh Circuit in regular active service—but by the nine justices sitting at One First Street.

Lo and behold, yesterday the Supreme Court decided, per curiam, the first case of October Term 2015, Maryland v. Kulbicki, No. 14-848 (Oct. 5, 2015), in which it upbraided the Maryland Court of Appeals for “apparently conducting its own Internet research nearly two decades after the trial.” Slip op. at 4.

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Does Wisconsin’s Four-Corners Rule Govern an Insurer’s Duty to Defend?

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Those who follow the work of the Wisconsin appellate courts might recognize this question as one that District II of the Court of Appeals certified to the Supreme Court nearly five years ago in Wilkinson v. Arbuckle, 2011 WI 1, 330 Wis. 2d 442, 793 N.W.2d 71, before the parties ducked an answer to the question by settling their differences, after the Supreme Court decided to accept the case.

Last month District II decided Water Well Solutions Service Group Inc. v. Consolidated Insurance Co., No. 2014AP2484 (Sept. 9, 2015), an opinion written by Chief Judge Lisa Neubauer—and, in the words of the late, great Yogi Berra, it’s like déjà vu all over again.

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Wisconsin Courts Can Consider Documents Referred to in a Complaint, Even if They Are Not Attached to the Complaint

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Wisconsin’s court of appeals recently adopted the incorporation-by-reference doctrine as part of the state’s pleading standard in Soderlund v. Zibolski, No. 14AP2479 (Sept. 22, 2015). The decision, written by Judge Cane of District III (and recommended for publication in the official reports), allows a circuit court to consider documents referred to in a complaint even if those documents were not attached to the complaint.

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