In a recent article, Professor Peggy Davis called for reforms in judicial reception of legislative facts. Her suggestions, which follow an empirical analysis of the use of psychological parent theories in child custody disputes, echo similar proposals by Professor Kenneth Karst in 1960s and by Professors Arthur Miller and Jerome Barron in 1975 for judicial reception of legislative facts in constitutional cases.As originally defined by Kenneth Culp Davis, legislative facts are facts that "inform a court's legislative judgment on questions of law and policy." They contrast with adjudicative facts, which are facts about "what the parties did, what the circumstances were, what the background conditions were."' The most commonly cited examples of legislative facts are Louis Brandeis' recitation of opinions that workingwomen needed special protection in his brief in Muller v. Oregon, and the social science appendix detailing the deleterious effects of segregation on black children in Brown v. Board of Education." Discussions of the judicial reception of legislative facts implicate questions of the role of social science in law, the scope of judicial notice, and, more generally, the process of judicial decision making. Because assumptions about disputable general facts are necessary to any reasoning process, the advisory committee on the Federal Rules of Evidence declined to prescribe formal rules for the reception of legislative facts when providing standards for judicial notice. The advisory committee believed that judicial absorption of general nonlegal knowledge should not be circumscribed by "any limitation in the form of indisputability, any formal requirements of notice other than those already inherent in affording opportunity to hear and be heard and exchanging briefs, and any requirement of formal findings at any level."
Rethinking the Judicial Reception of Legislative Facts,
41 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol41/iss1/3