Neal Feigenson (Quinnipiac University – School of Law) has posted Video Decidendi: Judicial Performance as Jurisprudence on SSRN. Here is the abstract:
In a 2025 Ninth Circuit case involving a constitutional challenge to a California law banning the possession of large-capacity magazines, Judge Lawrence VanDyke did something no judge has ever done before: He made a video and incorporated it into his opinion. In the video, he demonstrated facts not in the record about firearms to support his argument that the majority had misconstrued the meaning of “arms” under the Second Amendment. The majority and concurrence took VanDyke’s video to task for improperly introducing extra-record facts on appeal. VanDyke countered that his was a conceptual, not a factual, argument. They’re both wrong. VanDyke’s video does rely on facts not in the record, but they are legisla>ve facts, of which judges take notice all the time. Indeed, the video, by demonstrating those facts and thus making the reasoning based on them more transparent, accessible, and evident than a purely written opinion could, provides a stronger than usual case for noticing legislative facts. This unprecedented video is jurisprudentially significant for additional reasons. Substantively, VanDyke’s performance bolsters his interpretation of the Second Amendment by conveying through gesture, action, and sound arguments he could not have expressed as well in text alone. It also exemplifies how video opinions, being more material, contextual, temporal, and personal than written ones, may affect case law more generally, should other judges choose to adopt the practice. I argue that the law should accept the challenge VanDyke’s video poses to consider the benefits and drawbacks of incorporating into judge-made law this new medium of fact presentation and legal reasoning.