Appellate Issues: Appellate Judicial Notice in a "Google Earth" World.
By the time a case reaches appeal, practitioners tend to think of the "record" as closed. For more than two centuries, though, American appellate courts have been using the concept of judicial notice to expand the "record" before them, whether expressly or impliedly. In recent years, the role of appellate judicial notice has grown.
The proliferation of information-technology has driven this recent growth, but the temptation for appellate courts to go outside the "record" has always been present. Appellate judges are legal generalists, and appellate judges may need background information that attorneys-often specialists-have omitted from the briefs on appeal. What has changed in recent years is that the sum of all human knowledge (or a near approximation of it) is now a few mouse clicks (or taps on a tablet computer or smart phone) away. It is hard to blame appellate judges from making use of information that is now, literally, at their fingertips. It is even harder to blame their cohorts of law clerks and staff attorneys, often recent law graduates and for whom the "information superhighway" may be more like a neighborhood street.1
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