Like many lawyers – and most appellate specialists – I’m closely following the waning days of the United States Supreme Court’s term. To those of us who spend a lot of time reading recent opinions of the Court, it’s been clear for a number of years that many Justices are becoming increasingly comfortable doing their own factual research, outside the record and the briefs. The Justices aren’t finding their own adjudicative facts – facts about the underlying dispute or the trial – they’re presenting new legislative facts – the type of more general statements about the world outside the courtroom that Congress considers every day.

Thanks to a fascinating new study from Professor Allison Orr Larsen of William & Mary, we now have a detailed analysis of the phenomenon: “Confronting Supreme Court Fact Finding”. The entire article is well worth a read to anyone interested in the Court.

Professor Larsen’s research confirms the anecdotal impression that many court watchers have: independent factual research is commonplace at the Court. Of the 120 most important decisions from the Court between 2000 and 2010 – as measured by two indexes used by political scientists – 56 percent contained at least one factual assertion supported by a source outside the record and never mentioned in any of the briefs. Forty-seven percent of the cases which involve at least one assertion of legislative fact contain four or more extra-record factual sources.

Professor Larsen points out that cases like Brown v. Entertainment Merchants Association, which involved a law restricting the sale of violent video games to minors, sparked considerable independent research from many members of the Court – Justice Breyer compiled an appendix of academic journals; Justice Alito cited to a number of websites; and Justice Thomas cited 59 sources for the proposition that the founding generation believed that parents had complete authority over their children, 57 of them nowhere to be found in the record or briefs. She discusses many other examples as well, including Sykes v. United States, which involved the question of whether fleeing from the police in a car was a violent felony, and Graham v. Florida, which involved the question of whether the 8th Amendment permitted sentencing juveniles who committed non-homicide offenses to life without parole. Other scholars have pointed out similar examples in lower appellate courts [pdf].

But the core question, of course, is should anyone object? Professor Larsen suggests several reasons why the phenomenon is disturbing. First, the risk of simple mistake. As many courts have observed, for the most part, anyone can post anything on the internet for any reason. Second, there is a risk of systemic bias. Several search engines claim that the results they present to a particular user are influenced by the user’s earlier search history – in other words, the search engines present you with what they think you want to see. So there’s a risk that your independent research will merely reinforce the conclusions you had already drawn.

Professor Larsen’s third reason – and to me, the most compelling reason by far – is fairness and legitimacy. Technical non-legal issues arise all the time in my principal field of antitrust law, and scholars have investigated how generalist judges fare handling those issues.  As an attorney, I want an opportunity to offer the court my analysis of any non-legal materials it is contemplating relying on.

Even more important, however, is the interests of our clients. Many appellate judges have remarked that the primary function of oral argument, in their view, is to support the legitimacy of the process. Appellate decision-making can seem like a largely opaque process to those not accustomed to it. But through oral argument, a client can feel, win or lose, as if his or her advocate had an opportunity to face the decision-makers and make the case as best he or she can. This institutional value is seriously diminished if, when the attorney and client receive the court’s opinion, the result has turned on a finding of legislative fact and extra-record research which no one ever addressed while the case was at issue.

So what to do? Professor Larsen notes suggestions offered by various judges and commentators, including training judges in empirical analysis, making it easier for judges to use their own experts, and even creating a judicial research service. But such steps do little or nothing to address the serious issue of fairness and legitimacy; indeed, they arguably make the problem worse.

California addressed this problem nearly a generation ago, and its solution points out a useful way forward. According to California Government Code § 68081, before any appellate court decides a case “based upon an issue which was not proposed or briefed by any party to the proceeding,” the court must grant supplemental briefing. If the court does not do so, the court must grant rehearing on the timely petition of any party. Fairness and legitimacy concerns would be substantially eased if California’s solution was broadened and adopted elsewhere. Whether by court rule or statute, courts should commit to permitting the parties and their lawyers a fair opportunity to comment, either through supplemental briefing or rehearing, before a case is decided based upon a finding of legislative fact supported only by extra-record sources.

But now it’s your turn, readers. Has the trend towards independent research on legislative facts spread to state and intermediate Federal appellate courts? If so, is it a matter that should be addressed by rules or institutional reform? And what kinds of solutions would you suggest?