Document Type

Article

Publication Date

2014

Abstract

The Luddites thought that by smashing machines in early 19th Century England, they could eliminate the threat that those machines presented to them. Of course, they were wrong. As was the case during the Luddites’ time, technology continues to march inexorably onward in today’s society. As a result, those within the legal community—judges in particular—have no choice but to begin using technology. Although judges are currently using technology, they sometimes do so without understanding what they are doing.

Already, today’s “new-fangled” contraptions have ensnared judges. Perhaps the most widely known example is Judge Kozinski of the United States Court of Appeals for the Ninth Circuit. While he was sitting by designation in district court and presiding over an obscenity trial, it came to light that he had stored photos on the Internet including a pornographic image and a video depicting a man in the act of bestiality. Judge Kozinski said he thought the information was not publicly available. Although pornographic photos make Judge Kozinski’s failure to appreciate technology perhaps the most memorable, he is certainly not alone in failing to appreciate technology. As this Article shows, judges have created embarrassing posts, made awkward statements, set permanent examples of poor judgment, and done worse.

Even if a judge chooses to avoid using “new-fangled” contraptions like e-mail, social media, cloud storage, and other modern inventions, those around him or her are likely using all sorts of new technology. Court staff, law clerks, interns, jurors, and attorneys are using various new tools for surprising and sometimes unintuitive purposes. For example, jurors have been caught posting information about trials on Twitter and Facebook, and they have sometimes formed groups to talk among themselves prior to submission of the case.

Of course, jurors are also using various online resources to conduct factual investigation. Additionally, “friendships” between a judge and attorney have caused mistrials, and lawyers are using social media while picking juries in the courtroom to research jurors in ways that could concern the judiciary. ...

This Article discusses various issues that judges must be aware of in the Digital Age—even if they personally choose not to use “new-fangled” technology. Judges must keep abreast of conduct that implicates applicable ethical rules.

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