With the advent of instantaneous information and the trend toward shrinking adherence to the truth, the conversation surrounding the ability of judges to conduct outside research into the matters before them is gaining urgency. In a “post-truth” world, the role that the judiciary plays in our democracy must shift from trier of fact to guardian of factual integrity. And to do this, the professional ethics rules assigned to the judiciary may need re-evaluation.
This Essay argues that the judiciary's ambivalence to its role as fact finder must be overcome, and where appropriate, judges may be empowered to seek out supplemental information to be shared with the parties to better identify the truth at the center of the controversy. Further, in light of the many powers judges already possess to investigate the facts, including to elicit witness testimony, further expanding the courts' powers to research the matters before them will not undermine the unbiased nature of the judiciary. It will, rather, strengthen previously sanctioned powers of investigation to better protect against the ever-shifting political tides keen to influence the judicial outcomes handed down from the court.
Lissa Griffin, Judging During Crises: Can Judges Protect the Facts?, 50 Loy. U. Chi. L.J. 857 (2019).