by Michael C. Dorf
Here on the blog last week, Professor Segall's critique of originalism referred to a recent order issued by U.S. District Judge Carlton W. Reeves in a case presenting the question whether the federal proscription of possession of firearms by felons unconstitutionally infringes the Second Amendment. Judge Reeves asked the parties to address the question whether to appoint a historian as a "consulting expert" to provide objective evidence.
Arguably Judge Reeves was simply trolling the Supreme Court. Consider that his explanation for why he felt ill-equipped to perform the historical analysis demanded by Justice Thomas's majority opinion in NYS Rifle & Pistol v. Bruen relied chiefly on Justice Breyer's dissent in that case. Judge Reeves pointedly added that judges "are not experts in what white, wealthy, and male property owners thought about firearms regulation in 1791." Zing!
Whether or not Judge Reeves was just trolling Justice Thomas, his question raises an important issue that the Supreme Court has, so far as I can tell, never resolved: how to resolve questions of what lawyers call "legislative fact." In today's post, I'll sketch the problem and discuss a solution proposed in the leading scholarly treatment of it--a 2016 article by NYU Law Professor Kenji Yoshino in the William & Mary Law Review.
Let's start with the basics. Consider a garden-variety civil or criminal case in which the parties dispute the facts but not the law. For concreteness, suppose the question is whether the defendant was in fact the person seen by an eyewitness, who so testifies. Imagine that the defendant puts on an alibi witness--his mother, who says he was with her watching television at the critical time. The finder of fact (whether a jury or judge) must weigh the evidence. Is the eyewitness credible? Might the eyewitness be mistaken? Is the mother lying (as one might lie to benefit one's son)? Etc. Whatever conclusion the finder of fact reaches will be upheld (by the trial judge and reviewing courts in the case of a jury / by reviewing courts in the case of a bench trial in which the trial judge is the finder of fact) unless the conclusion is "clearly erroneous." This deferential standard of review is uncontroversially applied with respect to such adjudicative facts.
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