Recently a friend prompted me to think about the propriety of judges doing independent research. Courts and scholars have long debated the propriety of judges doing their own research and fact-finding, a debate that has intensified in recent years with the ease of internet research. The U.S. Court of Appeals for the Seventh Circuit, largely driven by recently retired Judge Richard Posner, has been at the epicenter of that debate.
Frankly, reasonable minds may differ about when it is appropriate. But if at first blush you think this is an issue that others can worry about, I beg to differ on that score. Judicial information-gathering can run afoul of ethics rules if the research would “appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality.” United States v. Harris, 271 F3d 690 (7th Cir 2001).
Courts, however, have been hesitant to find that independent research on more general issues results in “personal knowledge of facts that are in dispute.” Other limits on judicial curiosity stem from due process values, specifically the importance of giving parties notice and an opportunity to respond to new information. These fundamental values are not only constitutionally based, but are also embodied in a number of litigations.
I came across some interesting material which I thought I might as well share.