At the request of the Appellate Judges Education Institute, I researched the issue of the ethics of judges doing independent fact research. That research, in turn, led me to write an article concerning one of the provisions of the proposed ABA Model Code – Rule 2.9(C) and its discussion of the circumstances under which a judge may independently investigate the facts of a pending or impending case. Despite the hard work and best intentions of the ABA, I believe that because of the cross-reference to "judicial notice" the section as drafted will lead to confusion, inconsistency, and too much investigation outside the auspices of the adversary system. I therefore urge the Commission, when considering the new Code, to adopt a different version of Rule 2.9 and its related comment. Either allow research freely (from non-human sources), but only with notice to the parties and an opportunity to respond; or prohibit fact research entirely, whether of adjudicative or legislative facts, while encouraging the court to get any necessary information from the parties as part of the record.

I attach for your information a copy of the article, which was just published in the University of Texas’s Review of Litigation. I hope it's helpful. If you have any questions, please feel free to contact me at 214-768-2613 or by sending email to [email protected].

Elizabeth Thornburg
Professor of Law
SMU Dedman School of Law
Dallas, TX