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51 Duq. L. Rev. 51 (2013)
The Decline of the Record: A Comment on Posner

handle is hein.journals/duqu51 and id is 59 raw text is: The Decline of The Record: A Comment on Posner
Frederick Schauer*
I.     INTRODUCTION          .............................. .....51
II.    THE TRADITIONAL PICTURE            ........................ 52
III.   THE CONTEMPORARY CHALLENGE -
BY POSNER AND OTHERS.......................... 54
IV.    ON WHAT IS NEW AND WHAT IS NOT ..              ............... 55
V.      OF LEGISLATIVE AND ADJUDICATIVE FACTS ............... 56
VI.    THE USES AND LIMITATIONS OF JUDICIAL NOTICE ........ 60
VII.    CONCLUSION: FACT-FINDING ON APPEAL
AND ITS PROCEDURAL COMPLICATIONS            .............. 65
I. INTRODUCTION
Judge Posner's views about appellate advocacy and judicial de-
cision-making are rich and complex, addressing numerous topics
of interest and importance to lawyers and other judges.' His ar-
ticulation of those views is candid and occasionally surprising, and
I focus in this comment on one aspect of his views which may
strike legal and judicial traditionalists as the most surprising of
all-Judge Posner's assertion, without embarrassment or seeming
reluctance, that he consults factual sources not to be found in the
record from the trial court, nor discussed or argued below, nor ref-
erenced in the briefs of the parties, nor mentioned in oral argu-
ment.2 In engaging in his own factual research, Judge Posner is
not alone. Justice Breyer appears to have been doing so for some
years,3 to the occasional consternation of his Supreme Court col-
* David and Mary Harrison Distinguished Professor of Law, University of Virginia,
and Visiting Professor of Law, Columbia Law School. A much earlier version of this Essay
was presented as the 62nd John Randolph Tucker Lecture at the Washington and Lee
School of Law on February 8, 2011, and I am grateful for the comments and questions on
that occasion.
1. Richard A. Posner, Judicial Opinions and Appellate Advocacy in Federal Courts -
One Judge's Views, 51 DUQ. L. REV. 3 (2013).
2. Id. at 11.
3. See, e.g., Brown v. Entm't Merchs. Ass'n, 131 S. Ct. 2729, 2767-79 (2011) (Breyer,
J., dissenting);_ Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701,
803-19 (2007) (Breyer, J., dissenting); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,

51

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