Judicial Fact-Finding in a Digital World

Abstract

American judges are routinely called to answer legal questions embedded with generalized factual claims.  A few examples come to mind:  can the government restrict the sale of violent video games to children on the rationale that such games harm brain development?  Is engaging in a car chase so dangerous that it is permissible for a state to label it a per se violent crime?   Are partial birth abortions ever medically necessary so that to restrict one would infringe a fundamental right?  The traditional view in the United States is that these findings of fact are informed through the adversarial system: by reviewing evidence brought forth by opposing sides on the record, American jurists can make decisions.  In a series of articles, however, I have observed that this norm has changed radically since the world has undergone a massive change in the way it obtains information.   The Internet provides a revolutionary new tool for members of the judiciary to address these so-called “legislative facts” or “social facts” on their own – outside the scope of the adversarial system. Social science studies, raw statistics, and other data are now all just a Google search away.  Consequently, factual arguments are playing an increasingly central role in American judicial decisions.  To date, I have written on several aspects of this phenomenon: the citation of materials outside the record by courts, the use of Supreme Court amicus briefs as factual authorities, a growing tendency of lower courts to rely on the Supreme Court for statements of fact, and the temptation for judges to find laws outdated as a matter of fact, and thus, unconstitutional.  

My current project is a comparative one – to explore how UK courts handle factual arguments in a digital world.  I currently see two potential paths: (1) exploring whether UK standards of review (like proportionality?) have changed in response to these “fact-y” arguments and tools, and / or (2) evaluating differences in how UK courts and US courts treat expert opinions, particularly on appeal.   For this talk, my goal is to convince you that factual claims are everywhere -- even when masquerading as questions of law -- and then I would love assistance understanding how to translate my observations to a greater understanding of judicial decisions in the UK.

Biographical Note

Allison Orr Larsen is a professor of law at William & Mary Law School in Williamsburg Virginia. She joined William & Mary after graduating first in her class from the University of Virginia School of Law and clerking for two renowned jurists, Judge J. Harvie Wilkinson on the US Court of Appeals and Justice David Souter on the US Supreme Court. Professor Larsen teaches constitutional law, administrative law, and statutory interpretation. Her research focuses on the role facts play in court decisions, particularly in light of technological change. American judges routinely answer factual questions about the world – such as whether violent video games have a harmful effect on child brain development or whether a partial birth abortion is ever medically necessary. The traditional view is that in America these findings are informed through the adversarial system: by reviewing evidence submitted by the parties on the record and briefs on appeal. In a series of articles, however, Professor Larsen has observed that this norm has shifted since the world has undergone a massive change in the way it obtains information.

Professor Larsen has explored several aspects of these changes: the citation of materials outside the record by courts, the use of Supreme Court amicus briefs as factual authorities, a growing tendency of lower courts to rely on the Supreme Court for statements of fact, and the temptation for judges to find laws outdated and unconstitutional. Professor Larsen’s articles have received significant attention in the United States; her work has been featured in the New York Times, the Washington Post, the Boston Globe, the Wall Street Journal, and has been cited by several different judicial opinions. Professor Larsen recently became a co-author of the leading American casebook on Judicial Decision-Making. She is spending part of a sabbatical year at the University of Oxford exploring how the factual dimensions of legal argument are handled in the UK.