Court decisions written in sand

I highly recommend, to those of a sufficiently legalese-robust disposition, a paper from the Texas Law Review of 1999, Stepping into the Same River Twice: Rapidly Changing Facts and the Appellate Process, 78 Texas Law Review 269 (1999), by Stuart M. Benjamin, now a professor of law at Duke (though at the time of publication of the paper he was an associate professor at San Diego). (Warning - it's a big pdf file, so probably not worth trying to pull down over a slow modem).

It covers the impact of rapidly changing technologies and consequently changing facts on the legal appeal decision making process. Cases going through a long appellate process are not necessarily limited, of course, to areas of rapidly changing technologies and the paper outlines a couple of examples of such cases, such as the Alcoa antitrust action. (By "long" in the above sentence, of course, I mean a sufficiently long period of time to involve substantially changing facts. The actual time period will be dependent on the context and in practice could be significantly shorter than the 20 years taken by the Alcoa case).

From Professor Benjamin's conclusions:

"Bruce Ackerman introduced a useful metaphor for judging: judges as passengers in the caboose of a train, looking backward at the view behind them. One can imagine policymakers, looking boldly ahead setting the train (the American Republic) on a particular path. But the role of judges is to try to make sense of the landscape that the policymakers have carved out and the path they have chosen.

This article highlights an elaboration of the metaphor: appelate judges are not in the caboose looking at the landscape (at least insofar as the landscape represents the development of facts, as opposed to law). Trial judges are in the back of the caboose absorbing the view and writing descriptions of it; appellate judges are somewhere inside, blinds closed, relying exclusively (in theory anyway) on the descriptions that the trial judges give them. The problem on which this article focuses is that sometimes the landscape changes between the time the descriptions are written and the appellate judges get to review them."

He goes on to say that the system assumes facts don't change, so that the appeal judges can justifiably focus purely on questions of law; and even if facts do change, it is assumed that this only happens once and will not happen again. His suggestion on how to deal with this is that the appeal judges should open the blinds on their metaphorical train and make an assessment of the prevailing factual landscape themselves, even though this will involve more work for appeal courts.

Professor Benjamin rounds off the article thus:

"The larger issue, though, is that neither the appellate process nor our vision of precedent is terribly well equipped for rapidly changing facts. These situations confound not only our understanding of the role of appellate courts but the seeming permanence of appellate decisions. This article argues that fact updating will often be the most attractive response to changed and changing facts. But even if the updating of facts is necessary to ensure that appellate courts issue opinions that pertain to the world when those rulings are handed down, it is of course not sufficient to insulate appellate opinions from future factual changes. Where such transformations occur, formerly "current" appellate rulings will be out of date. Ultimately, whether we like it or not, judicial opinions are written in sand.

The use of the train metaphor is quite enlightening, don't you think?