Judicial Opinions as Minefields of Misinformation: Antecedents, Consequences and Remedies

Discussing factors that may make judicial opinions a minefield of misinformation, Seventh Circuit Judge Richard Posner hypothesizes . . . judges' knowledge of the world . . . relevant to legal decision making, derives to a significant degree from judicial opinions that, he suggests, may often be systematically unreliable sources of information. To test this hypothesis, Judge Posner urges academic commentators to expand their study of cases beyond judicial opinions . . . [and] get hold of the briefs and record to check the accuracy of the factual recitals in the opinion. Doing as Judge Posner proposes yields support for his hypothesis. The analysis also reveals that where a court's factual recitals do not comport with the underlying record, the negative effects can extend beyond the delivery of justice in the instant matter to denigrating subsequent case law and generating other adverse effects as well. After considering the antecedents and consequents of erroneous factual recitals, remedies are suggested for mitigating the problem.