Off the Record Research - Do the Appellate Rules Need To Be Changed?

The matter of appellate judges doing their own factual research from sources such as the Internet is becoming an increasing issue for our appellate world. It has been the source of heated opinions, including by a dissent to a majority opinion of Judge Richard A. Posner, an enthusiastic supporter of judicial use of extra-record facts to reach a "sensible opinion." Posner, Richard A., Reflections on Judging, Harvard University Press, 2013, at 131; see ~clso Rowe v. Gibson, 798 F.3d 622 (7th Cir. 2015). Indeed, opinions issued in the last few weeks of the Supreme Court's 2016 term included facts from the Internet, as well as opinions decrying the reliance on non-record facts. See Utah v. Streiff, 579 U.S. __, 136 S. Ct. 2056 (2016); Fisher v. Univ. of Texas at Austin, 579 U.S. __, 136 S. Ct. 2198 (2016).