The Curious Appellate Judge: Ethical Limits on Independent Research

Abstract

Appellate judges in the twenty-first century find themselves in a world in which litigation - both civil and criminal - involves a vast array of complex and technical factual disputes. These lawsuits, in turn, may cause judges to seek a greater level of expertise in order to deal competently with the evidence that will be relevant to the disputes. At the same time, advances in communication technology have brought the world's library to the courthouse, requiring no onerous trips across town or index searches but only the click of a mouse. This combination of felt need and ready access has turned a once-marginal concern into a dilemma that affects courts and litigants daily. The problem of judicial research has always been with us, lurking in the margins, and yet we do not have a workable framework for discerning when it is and is not permissible. We can no longer fail comprehensively and rigorously to engage this question, because it is now taking on a central importance to proper judicial decision-making in an increasing number of cases. The stakes are high. Whether and when judges independently may research cuts to the very heart of our adversary system of justice: these questions implicate directly the ethical role of the judge, the balance between fairness and efficiency, the rights of the parties, and how we view the rule of law. In 2007, the ABA adopted a new Model Code of Judicial Conduct, and it proposes a rule that ties judicial research to the parameters of judicial notice. This article argues that states should reject the current proposal and adopt instead a rule that provides clear guidance to judges, notice to litigants, and transparency to the judicial system.

Keywords: ethics, judicial ethics, judicial notice, due process

JEL Classification: K41