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The Empirical Judiciary. Book review of: Constitutional Fictions: A Unified Theory of Constitutional Facts. By David L. Faigman
No full textBook review: Constitutional Fictions: A Unified Theory of Constitutional Facts. By David L. Faigman. Oxford University Press. 2008. Pp. xiii + 230. Reviewed by: A. Christopher BryantBryant, A. Christopher. (2009). The Empirical Judiciary. Book review of: Constitutional Fictions: A Unified Theory of Constitutional Facts. By David L. Faigman. Retrieved from the University Digital Conservancy, https://hdl.handle.net/11299/170495
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Constitutional fictions:a unified theory of constitutional facts /
No full textDavid Faigman examines the role of fact-finding in constitutional cases. Because the role of facts is central to the day-to-day realities of constitutional law, he provides an extraordinarily important analysis of a subject that has been largely ignored by constitutional scholars
Constitutional Adventures in Wonderland: Exploring the Debate between Rules and Standards through the Looking Glass of the First Amendment
No full textIn his Essay, Professor Faigman accepts the proposition that the choice between rules and standards does not specifically affect constitutional outcomes. He maintains, however, that the choice still has great significance for constitutional adjudication. As he observes, the choice profoundly affects how the story is told. Professor Faigman identifies and discusses the distorting effects that result from the Court\u27s too ready employment of a rules-based constitutional method. First, he notes the distinct similarity between many constitutional rules and the standards based methods these rules are meant to replace. Second, he identifies how employment of rules regularly shifts the burden of proof to the challenger of the government action to disprove the basis for the government interests used to define the rule. Finally, Professor Faigman discusses how the full debate of constitutional values that is inherent in standards-based methods is essential to a well-functioning constitutional democracy
Constitutional Adventures in Wonderland: Exploring the Debate Between Rules and Standards Through the Looking Glass of the First Amendment
No full textIn his Essay, Professor Faigman accepts the proposition that the choice between rules and standards does not specifically affect constitutional outcomes. He maintains, however, that the choice still has great significance for constitutional adjudication. As he observes, the choice profoundly affects how the story is told. Professor Faigman identifies and discusses the distorting effects that result from the Court\u27s too ready employment of a rules-based constitutional method. First, he notes the distinct similarity between many constitutional rules and the standards based methods these rules are meant to replace. Second, he identifies how employment of rules regularly shifts the burden of proof to the challenger of the government action to disprove the basis for the government interests used to define the rule. Finally, Professor Faigman discusses how the full debate of constitutional values that is inherent in standards-based methods is essential to a well-functioning constitutional democracy
Measuring Constitutionality Transactionally
No full textIn his Article, Professor Faigman argues that the principal complaint about balancing-that rights and government interests are incommensurable and therefore not amenable to balancing- is misplaced. The so-called apples and oranges complaint assumes that the only way to compare liberty and government interests is through a common denominator. Although liberty and government interests are indeed independent factors, he argues, they are not unrelated. Departing from some of his earlier works on Madisonian Balancing, Professor Faigman proposes a theory of Constitutional Modeling, in which he describes how the relationship between liberty and government interests can be delineated through a third factor: constitutionality.
Professor Faigman describes the relationship between liberty and government interests, and their relationship to constitutionality, algebraically. Approaching the problem algebraically rather than arithmetically, Professor Faigman demonstrates how factors can be readily compared, despite the fact that they do not share a common scale and are independent. Describing constitutional adjudication in this algebraic fashion offers several lessons for constitutional analysis. Most importantly, this approach will promote candor and clarity in the debate regarding the nature of individual freedom and the extent of government power.
Finally, Professor Faigman argues for a transactional approach to constitutional adjudication. This perspective would require courts to aggregate rights. Currently, courts routinely aggregate government interests when balancing, yet measure liberty in a fractured and myopic way through the necessarily constricted lenses of individual amendments. A transactional approach would require courts to account for the full liberty infringement suffered by the individual and to measure that liberty against the full government justification for its action
Appellate Review of Scientific Evidence under Daubert and Joiner
No full textIn what he describes as a premortem on Joiner v. General Electric Co., a case before the Supreme Court at the time he is writing, Professor Faigman considers what role appellate courts should have in the evaluation of the admissibility of scientific expert testimony. Unclouded by the conclusions of the Court, Professor Faigman argues that appellate courts should share the active gatekeeping role that the Court created for district courts in Daubert v. Merrell Dow Pharmaceuticals, Inc.
Professor Faigman describes the lower courts\u27 opinions in Joiner, noting that the Eleventh Circuit adopted a somewhat murky heightened standard of appellate review in reversing the district court\u27s exclusion of expert medical testimony. He also reviews the amicus briefs submitted to the Court, with special emphasis on those amici supporting the district court\u27s opinion excluding what it considered to be bad science. These amici advocated a very deferential standard of appellate review, thus hoping to preserve the district court\u27s conclusion excluding the testimony. Professor Faigman suggests that a deferential appellate standard is inconsistent with the long-term interest of these amici in keeping bad science out of the courtroom. The best strategy for ensuring the sophisticated use of scientific research, Professor Faigman maintains, is for appellate courts to also assume a gatekeeping responsibility over at least some aspects of scientific evidence. Specifically, he argues that appellate courts should apply a hard look or de novo standard of review to expert testimony that relies on scientific research that transcends the particular case. He explains that active appellate review of scientific research that transcends particular cases is mandated by both legal and scientific reasons. By necessity, he points out, appellate courts must have the wherewithal, the gatekeeping power, to settle scientific disagreements among lower courts. This will be true for all scientific questions that transcend particular litigation, from the validity of DNA profiling to the toxicity of PCBs. Case-specific issues, however - such as allegations that evidence was planted at the scene of the crime, or that the expert is puffing for a fee - would remain matters on which appellate courts would defer to the fact-finder at trial. But, he concludes, only appellate courts are situated to ascertain and balance the policy implications raised by science, ensure consistency across jurisdictions, and evaluate the methods, principles and reasoning of multiple research studies
Measuring Constitutionality Transactionally
No full textIn his Article, Professor Faigman argues that the principal complaint about balancing-that rights and government interests are incommensurable and therefore not amenable to balancing- is misplaced. The so-called apples and oranges complaint assumes that the only way to compare liberty and government interests is through a common denominator. Although liberty and government interests are indeed independent factors, he argues, they are not unrelated. Departing from some of his earlier works on Madisonian Balancing, Professor Faigman proposes a theory of Constitutional Modeling, in which he describes how the relationship between liberty and government interests can be delineated through a third factor: constitutionality.
Professor Faigman describes the relationship between liberty and government interests, and their relationship to constitutionality, algebraically. Approaching the problem algebraically rather than arithmetically, Professor Faigman demonstrates how factors can be readily compared, despite the fact that they do not share a common scale and are independent. Describing constitutional adjudication in this algebraic fashion offers several lessons for constitutional analysis. Most importantly, this approach will promote candor and clarity in the debate regarding the nature of individual freedom and the extent of government power.
Finally, Professor Faigman argues for a transactional approach to constitutional adjudication. This perspective would require courts to aggregate rights. Currently, courts routinely aggregate government interests when balancing, yet measure liberty in a fractured and myopic way through the necessarily constricted lenses of individual amendments. A transactional approach would require courts to account for the full liberty infringement suffered by the individual and to measure that liberty against the full government justification for its action
Constitutional Fictions: A Unified Theory of Constitutional Facts
No full textConstitutional Fictions is the first book-length examination of the role of fact-finding in constitutional cases. Because the role of facts is central to the day-to-day realities of constitutional law, Faigman provides an extraordinarily important analysis of a subject that has been largely ignored by constitutional scholars. To show how contemporary facts play into constitutional analysis, Faigman examines some of the most controversial subjects of the late twentieth century, including physician-assisted suicide, abortion, sexual predators, free speech, and privacy. The Constitution is popularly thought of as a static document that embodies fundamental values and foundational principles of governance. However, the values and principles that the Constitution embodies must be applied to the circumstances and challenges of changing times. Constitutional Fictions explains how contemporary facts should be incorporated into constitutional decisions, thus allowing the Constitution to endure for the ages.https://repository.uclawsf.edu/faculty_books/1002/thumbnail.jp
Appellate Review of Scientific Evidence under Daubert and Joiner
No full textIn what he describes as a premortem on Joiner v. General Electric Co., a case before the Supreme Court at the time he is writing, Professor Faigman considers what role appellate courts should have in the evaluation of the admissibility of scientific expert testimony. Unclouded by the conclusions of the Court, Professor Faigman argues that appellate courts should share the active gatekeeping role that the Court created for district courts in Daubert v. Merrell Dow Pharmaceuticals, Inc.
Professor Faigman describes the lower courts\u27 opinions in Joiner, noting that the Eleventh Circuit adopted a somewhat murky heightened standard of appellate review in reversing the district court\u27s exclusion of expert medical testimony. He also reviews the amicus briefs submitted to the Court, with special emphasis on those amici supporting the district court\u27s opinion excluding what it considered to be bad science. These amici advocated a very deferential standard of appellate review, thus hoping to preserve the district court\u27s conclusion excluding the testimony. Professor Faigman suggests that a deferential appellate standard is inconsistent with the long-term interest of these amici in keeping bad science out of the courtroom. The best strategy for ensuring the sophisticated use of scientific research, Professor Faigman maintains, is for appellate courts to also assume a gatekeeping responsibility over at least some aspects of scientific evidence. Specifically, he argues that appellate courts should apply a hard look or de novo standard of review to expert testimony that relies on scientific research that transcends the particular case. He explains that active appellate review of scientific research that transcends particular cases is mandated by both legal and scientific reasons. By necessity, he points out, appellate courts must have the wherewithal, the gatekeeping power, to settle scientific disagreements among lower courts. This will be true for all scientific questions that transcend particular litigation, from the validity of DNA profiling to the toxicity of PCBs. Case-specific issues, however - such as allegations that evidence was planted at the scene of the crime, or that the expert is puffing for a fee - would remain matters on which appellate courts would defer to the fact-finder at trial. But, he concludes, only appellate courts are situated to ascertain and balance the policy implications raised by science, ensure consistency across jurisdictions, and evaluate the methods, principles and reasoning of multiple research studies
Constitutional Fictions: A Unified Theory of Constitutional Facts
No full textConstitutional Fictions is the first book-length examination of the role of fact-finding in constitutional cases. Because the role of facts is central to the day-to-day realities of constitutional law, Faigman provides an extraordinarily important analysis of a subject that has been largely ignored by constitutional scholars. To show how contemporary facts play into constitutional analysis, Faigman examines some of the most controversial subjects of the late twentieth century, including physician-assisted suicide, abortion, sexual predators, free speech, and privacy. The Constitution is popularly thought of as a static document that embodies fundamental values and foundational principles of governance. However, the values and principles that the Constitution embodies must be applied to the circumstances and challenges of changing times. Constitutional Fictions explains how contemporary facts should be incorporated into constitutional decisions, thus allowing the Constitution to endure for the ages.https://repository.uclawsf.edu/faculty_books/1002/thumbnail.jp
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