Judicial Ethics Is More Than Calling Balls and Strikes

As areas of the law evolve and society and technology create factual circumstances previously only imagined, judges may be tempted to research technology or new facts. Whether researching what constitutes a fantasy sports bet or whether generative artificial intelligence has created a fictional description of a legal treatise of entertainment law, this issue addresses a host of issues that are far from routine. The ABA Model Code of Judicial Conduct has consistently prohibited independent investigation of facts by a judge. As easy access to factual information through internet research tools has become ubiquitous, judges must be cautious to “stay in their lane.” A quick search for a definition of “virtual tattoo,” for example, can lead to acquiring facts outside of the court record that may be incomplete or biased. The Code and evidence rules do allow judges to consider “facts that may properly be judicially noticed” (Model Code of Judicial Conduct Rule 2.9(C)). However, there is a line between established recognized sources and new concepts that have yet to enter the official lexicon.

So too, where areas of the law evolve and present issues of first impression, judges may be tempted to presume analogous situations based solely on cases they have decided in the past. The mandate that judges perform judicial duties “competently and diligently” (Model Code of Judicial Conduct Rule 2.5(A)) here may require much more. It is likely that this situation is what was envisioned when the drafters of the Model Code articulated proper procedures for seeking “written advice of a disinterested expert on the law applicable to a proceeding before the judge” in Rule 2.9(A)(2). The procedures set out in the Code avoid any ex parte issues by requiring that the judge give “advance notice to the parties of the person to be consulted and the subject matter of the advice to be solicited” and give the parties “a reasonable opportunity to object and respond to the notice and to the advice received.”

Judicial ethics concepts require living in the gray area. While the day-to-day work of judging is often predictable and concerns applying clear laws and rules, issues raised in the area of sports and entertainment law bring the creative nature of their subject to the courtroom. Judges may be faced with issues and facts that a creative industry brings with it, challenging the judge to use the discipline of the law to ensure a fair and impartial outcome. To extend the metaphor, the judge may not only need to call balls and strikes but also review the rule book to determine whether a play wins the game.