Judicial Opinions and Journal Articles as 'Minefields of Misinformation'

Abstract

According to Judge Richard Posner, judicial opinions may be a mine of misinformation, but this tends not to be recognized because rarely do "commentators get hold of the briefs and record to check the accuracy of the factual recitals in the opinion." By comparing several opinions with their underlying records, evidence is here adduced in support of Judge Posner's hypothesis. The practical import of such findings are described by Judge Posner: "All this would be of relatively little importance were it not that lawyers' and, particularly judges' knowledge of the world, or at least the slice of the world relevant to legal decision making, derives to a significant degree from judicial opinions." Given the multiplier effect generated by precedent, as increasing numbers of opinions (generally, unknowingly) come to rely on factually incorrect recitals provided in earlier opinions, the threat to the administration of justice becomes more widespread. This suggests the need for a system that would identify and make these errors known before their damaging impact becomes magnified.