University of Notre Dame

Rethinking Legislative Facts

April 15, 2024

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Rethinking Legislative Facts

Haley N. Proctor*

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 purported lawmaking by the courts—hence the name “legislative.”  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, as facts of law, 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.

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© 2024 Haley N. Proctor.  Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Fellow, University of Missouri School of Law and Kinder Institute on Constitutional Democracy; Of Counsel, Cooper & Kirk PLLC.  I am grateful for helpful comments and guidance from Joel Alicea, Will Baude, Joseph Blocher, Erin Blondel, Samuel Bray, Dennis Crouch, Gregory Dickinson, Michael Gerhardt, Ben Johnson, Yunsieg Kim, Joshua Kleinfeld, Thom Lambert, Robert Leider, Erika Lietzan, Henry Monaghan, Julian Davis Mortenson, Lars Noah, Ryan Snyder, Tom Schmidt, Sandra Sperino, and Chas Tyler, as well as the participants in a colloquium at the Kinder Institute and the SEALS New Scholars Workshop.  I thank the Wall Constitutional Litigation Fund for generous research support and Logan Moore for excellent research assistance.  Finally, thank you to my wonderful husband and parents for their insights and encouragement.