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Trial by Google: Judicial Notice in the Information Age

46 Pages Posted: 28 Sep 2013 Last revised: 22 Nov 2014

Jeffrey Bellin

William & Mary Law School

Andrew Guthrie Ferguson

University of the District of Columbia - David A. Clarke School of Law

Date Written: September 26, 2013

Abstract

This Article presents a theory of judicial notice for the information age. It argues that the ease of accessing factual data on the Internet allows judges and litigants to expand the use of judicial notice in ways that raise significant concerns about admissibility, reliability, and fair process. State and federal courts are already applying the surprisingly pliant judicial notice rules to bring websites ranging from Google Maps to Wikipedia into the courtroom, and these decisions will only increase in frequency in coming years. This rapidly emerging judicial phenomenon is notable for its ad hoc and conclusory nature – attributes that have the potential to undermine the integrity of the factfinding process. The theory proposed here, which is the first attempt to conceptualize judicial notice in the information age, remedies these potential failings by setting forth both an analytical framework for decision, as well as a process for how courts should memorialize rulings on the propriety of taking judicial notice of Internet sources to allow meaningful review.

Keywords: judicial notice, evidence, criminal procedure, internet, Google

Suggested Citation

Bellin, Jeffrey and Ferguson, Andrew Guthrie, Trial by Google: Judicial Notice in the Information Age (September 26, 2013). Northwestern University Law Review, Vol. 108, p. 1137, 2014. Available at SSRN: https://ssrn.com/abstract=2331578

Jeffrey Bellin

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States

Andrew Guthrie Ferguson (Contact Author)

University of the District of Columbia - David A. Clarke School of Law ( email )

4200 Connecticut Ave. NW
Washington, DC 20008
United States

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