Haley Proctor (University of Missouri at Columbia – School of Law) has posted Legislative Facts (Notre Dame Law Review, Vol. 99, forthcoming) (69 pages) on SSRN Here is the abstract:
Giving meaning to law can be a fact-intensive exercise. Sometimes it demands a dusty search for the common usage of a word in 1789; sometimes a green-eye-shaded scrutiny of figures showing the economic impact of a regulatory measure. As the factual nature of legal inquiry has become increasingly apparent over the past century, courts and commentators have fallen into the habit of labeling the facts behind the law “legislative facts.” Loosely, legislative facts are general facts courts rely upon to formulate law or policy, but that definition is as contested as it is vague. Most agree that legislative facts exist in some form or another, but few agree on what that form is, on who should find them, and how.
This Article seeks to account for and resolve that confusion. Theories of legislative fact focus on the role facts play in lawmaking. This Article proposes a different approach that situates facts within the adjudicatory process. The facts captured by the label “legislative fact” play two different roles in resolving parties’ disputes: sometimes they provide a premise for the rule of decision the court uses to resolve the dispute, and sometimes they assist the court in relating that rule of decision to the circumstances of the parties. Courts should distinguish between these roles when determining who should find the facts, and how. This approach results in sounder dispute resolution and sounder developments in the law, and it is more administrable than the current, undisciplined approach.
Posted at 6:31 AM