Professor Elizabeth Thornburg (SMU) is on the verge of publishing one of the most (if not the most) comprehensive and analysis-heavy discussions of the (im)propriety of judges’ independent fact research. The work will appear in The Review of Litigation (University of Texas School of Law). Her catchy conclusion reads
like a movie with alternate endings: everything up to the end is the same, but the outcomes are very different. Accordingly, this article suggests that independent research (except from other people) should either be freely permitted in all areas, subject to the requirement that the judge give the parties advance notice, or should be generally prohibited, with judges calling on parties, amici, and the lower courts to supply missing information. The choice between alternatives should be based not on a fictional distinction between law and fact, but on explicit policy choices about the proper roles of parties and lawyers, judges and juries, and trial courts and appellate courts. Any choice should focus on the need for public confidence in the judicial system, the benefits of transparency, and the requirements of due process.
Elizabeth G. Thornburg, The Curious Appellate Judge: Ethical Limits on Independent Research, 28 REV. LITIG. (forthcoming 2009), a link to which can also be found in Articles.