Tribunals of fact, but what facts?

Information is at the heart of litigation in US courts. Every day they are in session, the courts wrestle not just with interpretations of the law, but with the facts themselves. Yet legal scholar Frederick Schauer argues that the way our legal system is structured makes it “more difficult for [judges and juries] to get the information they need than it is for most other public decision-making institutions.

Courts, writes Schauer, are “informationally disabled.” And since superior courts essentially make policies that affect all of our lives, that can be a big deal.

Each case culminates in a decision, what Schauner calls the “outcome.” What interests him is “the entrance”, the world of facts. From the criminal courts to the appellate system to the final arbiter, the Supreme Court, decisions are based on the “seemingly mundane factual questions that comprise most of what [judges and juries] do: determine who did what; and how, why and when they did it.

Among these facts, there are many complicated “scientific, technical, financial” facts. Neither judges nor juries are, in general, subject matter experts. So, are the courts “equipped to make factual decisions that have important consequences for individual litigants and, increasingly, for social policy as well”?

Schauner has five reasons to believe that courts may, in fact, be “unsuited to the task of adequate fact-finding”:

  1. The rules of evidence. Because of our common law heritage, the typical trial “continues to exclude a great deal of information that historians, journalists, detectives, and anyone else trying to make a factual determination would likely consider relevant to their investigations” .
  2. Adversarial court proceedings themselves may not be the best way to assess contested factual issues. A tribunal is not a laboratory or a controlled clinical trial. Nor is it a “persistent investigation”, expanding into new “lines of inquiry” as the evidence accumulates.
  3. Courts do not investigate, observe or experiment on their own; they deal with strictly second-hand information. Yet we now know that there are many reliability issues with human perception and memory. “Cross-examination is a much less effective method of exposing errors in real life than on television.”
  4. “The limited and sometimes artificially constrained area of ​​investigation” of a case. The investigator(s) – the judge or the jury – are not supposed to walk out of court and “seek out what may appear to be relevant information”. At the appellate level, judges are expected to confine themselves to the record received from the lower court and not do any further exploration on their own. Schauner notes that a few judges who insisted on stepping out of the case to search for “questions of scientific and technical fact. In one Supreme Court case, Justice Scalia “reprimanded Justice Breyer for relaying sources that were nowhere to be found in the case file.” Breyer’s sources were the vast body of social science studies on the issue at hand, information that many outside the hermeneutical world of the courts might well consider relevant.
  5. When courts develop “policies on important issues such as product liability, affirmative action, environmental damages, and insider trading, among others,” they do so on a case-by-case basis. which may not be at all “representative of the range of events that the policies cover.”

These “restrictions on accessing and evaluating information” all have their justifications, Schauner notes, “some better than others.” The fact that courts are “systematically informationally handicapped is therefore not necessarily or always to be deplored,” he writes. But when considering the “role of the courts in decision-making and policy-making”, we must take into account “[t]How courts (in relation to individuals, institutions, and other decision-making bodies) operate under procedures and traditions that produce a consistently and predictably information-poor decision-making environment.

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By: Frederick Schauer

Daedalus, Vol. 143, n° 3, The invention of the courts (summer 2014), pp. 105-114

The MIT Press on behalf of the American Academy of Arts & Sciences

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