Factual precedents.

AuthorLarsen, Allison Orr
PositionTendency of lower courts to cite Supreme Court decisions as authorities on factual subjects, due to their use of empirical data, as evidence to the truth of factual claims - Introduction through II. Examples of Factual Precedents, p. 59-97

Lawyers and judges speak to each other in a language of precedents--decisions from cases that have come before. The most persuasive precedent to cite, of course, is an on-point decision of the U.S. Supreme Court. But Supreme Court opinions are changing. They contain more factual claims about the world than ever before, and those claims are now rich with empirical data. This Supreme Court factfinding is also highly accessible; fast digital research leads directly to factual language in old cases that is perfect for arguments in new ones. An unacknowledged consequence of all this is the rise of what I call "factual precedents": the tendency of lower courts to cite Supreme Court cases as authorities on factual subjects, as evidence that the factual claims are indeed true. Rather than citing, for example, evidence from the record to establish that carpal tunnel syndrome regularly resolves without surgery, lower courts instead cite language from a Supreme Court opinion for that point.

This Article carefully describes how lower courts are using Supreme Court facts today and then argues that these factual precedents are unwise. The Supreme Court is not a factfinding institution. Facts change over time. And, unlike legal precedents, one cannot be certain that factual statements from the Supreme Court are carefully deliberated and carry the force of law. I argue that Supreme Court statements of fact should not receive any authoritative force separate from the force that attaches to whatever legal conclusions they contributed to originally. If a fact is so central to the legal holding that the two meld together, then the Supreme Court is free to so state and thus insulate the factual conclusion from future challenges by making it part of the legal rule. But the presumption, I suggest, should be no precedential value for generalized factual claims--even if they are facts found in the U.S. Reports.

INTRODUCTION I. WHAT ARE FACTUAL PRECEDENTS? A. Law Versus Fact B. The Emergence of Factual Precedents 1. Dramatic Changes to Legal Research 2. "Fatter" Supreme Court Opinions II. EXAMPLES OF FACTUAL PRECEDENTS A. "Imported Factual Precedents": Facts Imported from One Context to Another B. "Strategic Factual Precedents": Facts to Supplement the Record for a Calculated Purpose C. 'Aftermath Factual Precedents": Facts to Answer Residual Questions Following Landmark Legal Decisions D. Historical Factual Precedents E. "Premise Facts"." Facts that Form the Premise of a New Legal Rule III. WHAT SORT OF AUTHORITATIVE FORCE SHOULD ATTACH TO SUPREME COURT STATEMENTS OF FACT? A. Binding Authority: A Stare Decisis of Fact? B. Persuasive Authority: Skidmore Deference to the Supreme Court as Factfinder? IV. WHAT TO DO WITH "PREMISE FACTS"? CONCLUSION INTRODUCTION

Lawyers and judges speak to each other in a language of precedents--decisions from cases that have come before. (1) The most persuasive precedent to cite--either to a judge in argument or from a judge in explanation--is an on-point decision of the U.S. Supreme Court. Because lower courts in our legal system treat decisions of higher courts with supervisory jurisdiction as binding authority, a precedent from the very highest court effectively takes the issue off the table in the lower court. (2) Supreme Court precedents, therefore, are extremely valuable to all litigants and judges across the country.

But Supreme Court opinions are changing. They are longer. (3) They spawn more concurrences and dissents. (4) They include more citations than ever before, (5) And the citations are changing too. The Justices are not just citing cases. The Supreme Court is in the "throes of a widespread empirical turn" (6) ; consequently, its opinions are chock-full of statistics, social science studies, and other general statements of fact about the world. (7)

As Supreme Court opinions are fattening up, legal research methods have also changed. Full text searching enables a new emphasis on quotes over holdings and "words over concepts." (8) Gone are the days of hunting for principles of law in a digest or Shepardizing a case for ones with similar facts. (9) The new digital mode of legal research often leads directly to language in a decided case that is perfect for an argument in a new one--regardless of whether the language was central to the case in which it was offered or whether the holding of the cited case has any relevance to the one at hand. As Fred Schauer put it years ago, "[I]t is not what the Supreme Court held that matters, but what it said. In interpretive arenas below the Supreme Court, one good quote is worth a hundred clever analyses of the holding." (10)

An unacknowledged consequence of all this is the rise of what I call "factual precedents": the tendency of lower courts to over-rely on Supreme Court opinions and to apply generalized statements of fact from old cases to new ones. (11) Rather than citing, for example, evidence from the record to establish that many mild cases of carpal tunnel syndrome resolve without surgery, lower courts instead cite language from a Supreme Court opinion for that point. (12)

To be sure, factual claims play different roles at the Court. Sometimes the Court's understanding of a generalized fact leads it to adopt one legal rule over another. The holding in Brown v. Board of Education relied on the factual assertion that African American children are psychologically harmed by segregated schools. (13) The holding in Citizens United v. Federal Election Commission relied on the factual claim that corporate independent expenditures do not corrupt politics. (14) Whether legal holdings should rely on factual claims and how vulnerable those decisions are for reversal is a debate for another day. This Article tackles a different question: Namely, should the Court's statements of fact ever receive separate precedential force, distinct from the precedential force of whatever legal conclusions they contributed to originally?

In this Article, I argue no. The traditional arguments favoring strong stare decisis do not apply to statements of fact. The Supreme Court is not a factfinding institution. Facts change over time. And, most troubling, factual authorities employed instrumentally by the Justices--for persuasive rhetoric--may not be carefully deliberated, may not have garnered the support of five Justices, and may be selected for reasons other than that they are the most reliable sources. At bottom, the fear is that lower court judges will take something as authoritative from one who is not an authority on the subject. Factual statements about the way the world works should not be entrenched for the whole country in this way.

A concrete example might help. In 2009, in Nken v. Holder, the Supreme Court ruled on the legal standard to apply when a noncitizen sought to stay his deportation pending judicial review of his appeal. (15) At the end of the opinion, Chief Justice Roberts opined that deportation did not result in irreparable injury. (16) He added, "Aliens who are removed may continue to pursue their petitions for review, and those who prevail can be afforded effective relief by facilitation of their return, along with restoration of the immigration status they had upon removal." (17) This statement has a factual component--a true or false assertion about prevalent immigration practices--that was based on assurances from the Solicitor General in his brief that the United States tries to facilitate the return of deported immigrants who later win their appeals.

After inquiries from immigration attorneys, the Solicitor General admitted in a letter to the Supreme Court that he is "not confident" that U.S. policy is as clear as described in the Nken brief. (18) Immigration rights groups are not satisfied by this letter, however. (19) Interestingly, they do not seek a rehearing of the Nken case--perhaps acknowledging that the factual mistake would not cause the Court to alter the result. What they are worried about, instead, is that other courts will rely on this statement of fact in Nken to the detriment of noncitizens in other cases. (20) They are, in other words, worried about the factual precedent coming out of Nken. And they have reason to worry: at least ten courts to date (federal and state) have quoted the above statement from the Chief Justice about the general tendencies of immigration officials. (21)

Nken is not an outlier. Lower courts cite the Supreme Court to establish, for example, that forensic evidence is frequently manipulated, (22) post-abortion depression is exaggerated, (23) Americans attend church more often than citizens of other nations, (24) predatory pricing rarely occurs in the market, (25) campaign donations lead to biased judges, (26) and psychopaths retain some ability to control their behavior. (27)

Lower courts seem confused about what to do with these Supreme Court findings of fact. (28) Some courts deny being bound by the factual findings of higher courts. (29) Others say it makes no sense to reproduce all of the factual evidence--on abortion procedures or effects of campaign finance laws, for example--in every relevant case. (30) What is clear, however, is that despite what they say about the limits of stare decisis, "the tendency of the courts to apply that principle to findings of fact is a rather substantial one." (31) This particularly holds true for statements of fact that come from the Supreme Court--regardless of how central the fact was to the legal rule announced in the original case. (32)

This Article highlights this growing problem and offers one possible solution to the confusion. I argue that lower courts should never give separate precedential force to Supreme Court findings of fact. These generalized factual claims should not even be treated as extra persuasive because they appear in the U.S. Reports. A lower court should not care what Justice O'Connor says about carpal tunnel syndrome or what...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT