Legislative Facts Research Articles

Responsible Religious Freedom: Factual Scrutiny in Free Exercise Doctrine

Abstract The state of the Free Exercise Clause in U.S. constitutional law is uncertain. With an opportunity in Fulton v. Philadelphia to clarify the vitality of the current standard from Employment Division v. Smith, the United States Supreme Court has declined to do so. The lasting impact of Smith has been to move away from directly requiring government justifications for infringing free exercise. Instead, courts now use neutrality and general applicability as heuristics for government justification. Yet, relying solely on neutrality and general applicability to proxy for government justification when infringing religious exercise distracts courts from conducting a fact-based inquiry. This article demonstrates how more scrutiny of the legislative facts in free exercise doctrine may serve as a viable alternative to Smith’s flawed approach for evaluating government justifications. The author first shows empirically how more factual scrutiny—directly requiring the government to justify its actions with evidence—can benefit government and religious claimants and then discusses the normative advantages of a fact-intensive approach to constitutional scrutiny. During a moment of sharp division over religious freedom and other competing rights, factual scrutiny can be a powerful tool for handling free exercise challenges and promoting responsible religious freedom.

Relevant Generality of Antitrust Economics: Competitive Effects as Adjudicative and Legislative Facts

Abstract Antitrust enforcement proceedings routinely rely on information provided by positive economics. Recognizing that this information may help the court to decide what happened in the case at bar as well as what substantive rule to apply to the case, this article examines how general the information needs to be to bear relevance to each of these decision-making tasks. The examination is conducted in the context of US law, relies on the conventional distinction between adjudicative and legislative facts, and focuses on competitive effects as the paramount type of antitrust facts. Economic inquiries into the competitive effects of the conduct under scrutiny are then shown to be relevant if they take sufficient account of the specifics of the case. This requirement will rarely be satisfied by inquiries based on generic models. In contrast, when deciding on the content of the applicable antirust rule, the court needs comprehensive information about the competitive effects of the entire conduct class. Economic analyses into the effects of specific conduct will hence be hardly relevant.

Legislative Facts

Legislative Facts

Putting a Social and Cultural Framework on the Evidence Act

What follows are presentations to a seminar on the Supreme Court decision in Deng v Zheng (2022): guidance on bringing relevant social and cultural information to the court’s attention. The case concerned whether, despite a lack of formal documentation, the parties had entered into a legal partnership, of which they would be jointly responsible for the debts of the partnership. Two issues arose relating to the culture of the parties: namely, whether the meaning to be ascribed to 公司 (gingsi) went beyond ‘company’ and could extend to ‘firm’ or ‘enterprise’ and the significance of 关系 (guanxi). Both parties are Chinese and their business relationship appeared to have been conducted in Mandarin. Justice Goddard was the presiding judge in Zheng v Deng (2020), the Court of Appeal judgment appealed to the Supreme Court. Mai Chen appeared with two other lawyers on behalf of the intervenor, the New Zealand Law Society.
 Keywords: social and cultural framework; Evidence Act; expert evidence; translations; interpreters; adjudicative facts; social facts; legislative facts; stereotyping; subconscious bias; judicial notice; reliable published documents.

일본의 중요토지조사규제법 제정과 쟁점

On the basis of national security and territorial integrity, can the state regulate the use of land and buildings around important defense facilities or on border islands? In response, on June 16, 2021, Japan promulgated ‘Important Land Survey Regulation Act.’ In enacting the Important Land Survey Regulation Act, the Japanese government suggested land acquisition in a specific area by foreign capital as a basis for legislation. Due to the cases of land acquisition in a water source, defense facilities, or border islands, anxiety among Japanese residents and the people is growing. As a background of legislation, the Important Land Survey Regulation Act refers to ‘concerned’ foreign capital and state. It is primarily considering Korea and China as regulatory targets. The Important Land Survey Regulation Act is a regulation law based on the maintenance of the base of national life, maritime sovereignty, and national security. In the future, I think the Important Land Survey Regulation Act will have a direct or indirect effect on Korea. From a national security perspective, laws that regulate direct investment in corporate purchases also exist in the United States and Japan. However, regulations on real estate transactions have recently been introduced from the perspective of national security. In the United States, the Foreign Investment Risk Review Modernization Act (FIRRMA) enacted in August 2018 is a representative law. Real estate transactions are being conducted as a subject of review by the US Foreign Investment Committee (CFIUS). From a national security perspective, Japan is reviewing the case of the United States, which regulates the sale of real estate. However, problems with the bill were pointed out in the process of enacting the Important Land Survey Regulation Act. The issue of unconstitutionality of the Important Land Survey Regulation Act was also raised. In this study, I reviewed the issues and the contents of the law in the legislative process of the Japanese National Assembly : the purpose of legislation and the existence of legislative facts, the subject of regulation and delegation of legislation, forest and water sources, enforcement decree and delegation legislation, resident movement regulation, designation of special zones, and pre-reporting system, etc. The following matters were reviewed on the issue of unconstitutionality inherent in the Important Land Survey Regulation Act : legislative purposes and the absence of legislative facts, violation of the principles of parliamentary legislation, principle of criminal justice, recommendations and orders and criminal penalties, land use investigation and personal information, privacy rights, freedom of thought and conscience, self-denial rights, property rights and compensation systems, etc. The Important Land Survey Regulation Act, like FIRRMA in the United States, is based on national security, Japan primarily aims to protect Japan’s Self-Defense Forces facilities and U.S. military facilities. To this end, ownership and use, and transactions of land and buildings in a specific area are regulated. Second, however, it is a law to prepare for border disputes or maritime disputes between Japan and China, Japan and Russia, Korea and Japan. From the perspective of borders, territories, and maritime sovereignty, the Republic of Korea needs to establish new border protection measures for uninhabited islands and islands.

Argument from Precedent in Legal Interpretation of Texts of Legal Acts from the Perspective of a Derivative Concept of Legal Interpretation

The aim of this article is to ascertain whether in the Polish legal culture in which precedent is not a legislative fact, it can become an argument in the process of judicial interpretation. The article posits that an analysis of precedent as an argument in judicial interpretation must be carried out in relation to a particular concept (or theory) of legal interpretation. Hence, it adopts the Maciej Zieliński’s (derivative) concept of legal interpretation as a point of reference for understanding "legal interpretation". The choice is based on the following reasons: 1) this concept offers a complex approach to legal interpretation (which assumes that interpretation can be concluded if three directives have been applied by an interpreter: linguistic, systemic and functional); 2) this concept considers the realistic elements of legal interpretation in the form of directives linked to the interpretative findings achieved in judicial practice; 3) this concept stipulates that legal interpretation has certain roles, which allow establishing whether the outcome of legal reasoning is within the scope of the interpretation or whether it constitutes a "normative novelty". As a result of this analysis, it can be concluded that depending on the content of the directives of interpretation adopted in a given legal culture, the proceedings of the entity applying a law will have either an interpretative or a legislative character and will consequently determine how invoking earlier court judgments in legal interpretation will be classified.

Judicial notice: beyond adversarialism and into the exogenous zone

ABSTRACTRecent Australian decisions regarding courts’ unilateral access to exogenous (ie non-legal) knowledge have been restrictive, reflecting a strong commitment to the adversarialist principle of party presentation. With reference to underlying goals of factual accuracy, efficient dispute resolution, fairness and institutional integrity we argue that the restrictions should be loosened. The strict principle of party presentation, with only narrow scope for judicial notice, may be justified with regard to the specific facts of the case, given that the parties will have special access to relevant evidence and a strong motivation to present it. However, there is no reason to privilege the parties where legislative facts and general factual propositions are in issue. While the parties should, of course, be given notice and the opportunity to make submissions, the courts should feel an obligation to draw on a wider range of sources of information. This is particularly the case where there is an imbalance in the resources of the parties.

Evidence-based judicial review of legislation: some introductory remarks

ABSTRACTThis article is an introduction to the special issue on evidence-based review by constitutional and supreme courts. It discusses the emergence and future development of this still understudied part of judicial review, which seems to be a corollary of evidence-based legislation. Since growing emphasis on legislative facts and prognoses by the judiciary is not an exception, but part of a trend, encompassing many constitutional states as well as transnational and international adjudicative bodies, such as the European Court of Justice, the European Court of Human Rights and the WTO Dispute Settlement Bodies, this issue unites contributions from different countries, focusing on multiple problems related to the topic of evidence-based review. The editor’s preface designates several key issues and introduces the contributions to this special edition.

Evidence-based review of legislation in Germany

ABSTRACTThe call for evidence-based review of legislation by the German Federal Constitutional Court is solidly based on German constitutional law. In Germany, both the legislative obligation of evidentiary evaluation of legislative facts and their inclusion into judicial review are generally accepted. However, there is no conclusive relationship between evidence-based legislation and the evidence-based review of legislation. Therefore, the beginnings of evidence-based review in the case law of the German Federal Constitutional Court date back to the formative era of the Court when the concept of evidence-based legislation was still non-existent or remained in a dormant state. The upswing of evidence-based review in Germany profits from the absence of parliamentary sovereignty in German constitutional law on the one hand and a very strong reading of the rule of law and fundamental rights on the other hand. Hence, evidence-based review has its legal basis primarily in the principle of proportionality and the principles of equality and non-discrimination, which approach the concept of rational law-making. However, as a rule, the Constitutional Court can confine itself to meta-evaluation of legislative facts. Owing to the balance of powers, the Court must respect a legislative margin of appreciation. The Court is only in exceptional cases obliged to conduct a complete factual examination. Since the taking of evidence by the Constitutional Court is only vaguely regulated, it enjoys considerable leeway. Although the Karlsruhe Court11 FCC (‘Bundesverfassungsgericht’), informally called after its location. has gained international reputation as a frontrunner of empirical review, on closer inspections many problems remain to be solved. In this respect, the article concentrates on criteria determining the gradation of evidence-based review, ranging from manifest error to strict scrutiny, and on the intricate problem of legislative prognosis. An unbiased analysis of evidence-based review must consider in addition the strategies of courts and investigate, in particular, whether and when they are neutral, partisan or pursue their own interests.

“Außerjuridisches“ Wissen, Alltagstheorien und Heuristiken im Verwaltungsrecht

Abstract “Extra-juridical” Knowledge, common-Sense Constructions of Reality, and Heuristics in Administrative Law The interpretation and application of law requires access to non-legal knowledge in several dimensions. Of importance for the interpretation of a law are the legislative facts to which it makes reference in a general matter. The application of law to specific problems requires another type of facts: information about the specific facts and circumstances of the problem at hand. If consequences of a legislative or administrative decision need to be taken into account, facts are needed as the basis for making prognoses. The legal system and juristic methodologies offer only limited assistance when it comes to generating and interpreting facts and how they are handled for prognostic purposes. Supplementary resort to the findings and approaches of extra-juridical disciplines is the subject of discussions concerning multi- and interdisciplinarity. Such debates have wrongly been limited to the utilit...

Libraries and the Affordable Care Act: Helping the Community Understand Health-Care Options

In the midst of both consumer and health professional confusion about the Affordable Care Act (ACA), Francisca Goldsmith writes a practical, clear, and compassionate guide for any librarians assisting information seekers with this topic. Goldsmith, a veteran of both public and academic library service in the United States and Canada, has supplied her expertise in staff development and library instruction through California's Infopeople Project and works with the underserved. Goldsmith knows what library staff and library patrons need to know to respond to community needs for health information, to cope in a practical manner with literacy disparities of all types, and to manage the role of public or consumer health libraries as change agents in a responsible legal and ethical manner. The author's purpose is to engage and encourage public library staff awareness and service planning in supporting local community health. Using knowledge gained from the first open enrollment period in 2013 to 2014, the author assists public library staff with providing information access and community education. The result is this core manual of essential knowledge, resources, library responses, and best practices. Intended to serve as a guide for library staff to tailor their role to the needs of their local communities, Goldsmith offers no singular blueprint. Instead, she provides short chapters, with bullet points for easy reference and task lists to focus planning and goal accomplishment. She is mindful of issues related to staffing and rural or urban settings. Chapter one, “The Affordable Care Act: Overview and Context,” provides the legislative facts and texts, the history, synonyms and editorial names, the role of federal and state governments, insurance exchange/marketplace types, Medicaid, initial outcomes, enrollment, recognition of local needs, project management, and staff awareness. Chapter two, “Health Insurance and Insurance Exchange Structures,” explores the terrain of the insurance exchange and insurance plans, small business health options, Medicaid in relation to the exchange, and health care access and the library. Chapter three, “Know Your Community,” provides the basics of digging more deeply into ethnicity, culture, language, and health literacy. Chapter four, “From Affordable Care Act Policies to Functional Library Tactics,” outlines the goals of the Federal Health Agency and the five policy objectives of the ACA. Goldsmith explains how to extract “library tactics” from the aforementioned policies. Language and technology access issues, especially for diverse populations, merit particular focus. A valuable outline of upcoming changes in the ACA through 2020 helps to keep this book current. Chapter five, “Ethics and Legal Matters Related to Health-Care Information Services,” describes codes of appropriate behavior, especially related to community health care consumers, and ethics in politics, diversity, library collections, legal situations, and technical and technology access. Chapter six, “Health-Care Related Reference Interviewing,” addresses the strong concerns that both public library and consumer health library staff may have in relation to uncovering patrons' real health information needs. Chapter seven, “Literacy, Health Literacy, and Financial Literacy,” succeeds in looking beyond reference and information technology services to the value of household income and motivated skill acquisition. Chapter eight, “Programming to Promote a Healthy Community, on the Ground and Online,” focuses on transparency, partnerships, stakeholders, rural concerns, and online support, with specific public library examples of successful approaches. Chapter nine, “Keeping Up Now, Documenting for Future Advocacy,” emphasizes the need for ongoing awareness, training, and documentation as an advocacy tool. Each chapter ends with questions and tasks, simplifying both learning and planning for library staff using this book. Notes at the end of each chapter also suggest related websites, media, and other resources useful for comprehension and additional research. Questions and tasks are worded clearly and explicitly to encourage best practice. Goldsmith includes three appendixes. Appendix A offers “Affordable Care Act Oversight and Marketplace Access by State.” Appendix B, “Resources,” features information about government regulations and sponsored access assistance, tools for plain language communication and exploration of community needs and assets, and social media resources. Provided tools include the Kaiser Family Foundation, WebJunction, and other key references. Appendix C, “Where Do I Find,” is the quick section provided in place of an index. For this type of handbook, it suffices. This book is recommended for public library staff and for medical or academic library staff who answer consumer health questions or questions about ACA from any patron type, and it is recommended as the primary, go-to-first resource. Exceptional in its practical utility and consumer health expertise, this title is complemented by the newly published The Medical Library Association Guide to Answering Questions about the Affordable Care Act by Emily Vardell (Rowman & Littlefield; 2015. ISBN: 978-1-4422-5536-4).

Reconceptualising the Role of the New Zealand Environment Court

What does the specialised nature of an environment court entitle it to do? The recent decision of the New Zealand Supreme Court in Environmental Defence Society Incorporated v Marlborough District Council (‘the King Salmon case’)[2014] NZSC 38 helps to answer this question. For the past 20 years, the New Zealand Environment Court has decided applications within a framework of the broadly defined statutory purpose of sustainable resource management. The King Salmon case narrows this wide discretion. This article analyses the implications of the decision, suggesting that it helps to delineate between functions of specialist environment courts that may be considered appropriate (adjudicative and legislative fact finding) and decision-making that strays too far into the policy-sphere.

Social Science, Media Effects & The Supreme Court: Is Communication Research Relevant After <em>Brown v. Entertainment Merchants Association</em>?

This article examines the implications of the U.S. Supreme Court's 2011 ruling in Brown v. Entertainment Merchants Association for the future use of social science evidence and communication research to supply legislative facts supporting laws that target harms allegedly caused by media artifacts. The Brown majority set the bar for the relevance of social science evidence exceedingly high - perhaps too high, the article suggests - while Justice Stephen Breyer, in contrast, adopted a much more deferential approach in a dissent that embraced the evidence proffered by California. The article also reveals an apparent inconsistency in Justice Antonin Scalia's approach to social evidence when comparing his majority opinion in Brown against his opinion just two years earlier in Federal Communications Commissionv. Fox Television Stations, Inc. Ultimately, the article asserts that communication scientists hoping to influence both legislative bodies and jurists should view Brown as a wake-up call to do two things: 1) educate lawmakers and jurists about whether and when social science research can adequately resolve complex questions about media-caused harms; and 2) jettison research that lacks real-world generalizability and legal relevance.

The Adversarial Myth: Appellate Court Extra-Record Factfinding

The United States’ commitment to adversarial justice is a defining feature of its legal system. Standing doctrine, for example, is supposed to ensure that courts can rely on adverse parties to present the facts courts need to resolve disputes. Although the U.S. legal system generally lives up to this adversarial ideal, it sometimes does not. Appellate courts often look outside the record the parties developed before the trial court, turning instead to their own independent research and to factual claims in amicus briefs. This deviation from the adversarial process is an important respect in which the nation’s adversarial commitment is more myth than reality. This myth is problematic for many reasons, including the fact that it obscures the extent to which some of the most significant cases the Supreme Court decides, such as Citizens United v. FEC, rely upon “facts” that have not been subjected to rigorous adversarial testing. The adversarial myth exists because the U.S. legal system’s current procedures were designed to address adjudicative facts — facts particularly within the knowledge of the parties — but many cases turn instead on legislative facts — more general facts about the state of the world. Recognizing this distinction between adjudicative and legislative facts helps identify those cases in which existing practices undermine, rather than promote, adversarial justice. This Article concludes with suggestions for reform, including liberalizing standing doctrine when legislative facts are at issue. If courts are going to turn to nonparties for help in resolving disputes of legislative fact, it is better that they be brought into the process earlier so the factual claims they offer can be rigorously tested.

Foreign Law as Legislative Fact in Constitutional Cases

Do we really need another law review article about foreign law in constitutional interpretation? In fact we do. In the vast literature on the subject, a fundamental point has received scant attention. In the recent rulings that have stoked the present controversy, the Supreme Court has employed foreign law not as law, but rather merely as evidence of a legislative fact made relevant by domestic constitutional law. Commentators, however, have largely directed their attention to the merits of a genuine constitutional comparativism, in which foreign law serves as a model for the creation of domestic constitutional doctrine. Many commentators have advocated just such an approach, and at least one sitting Justice has joined in this chorus in both extrajudicial commentary and in a dissenting opinion. But to date, the Court has yet to take this much-mooted step, perhaps due to an awareness of the complex theoretical challenges such an approach would raise. A few opponents to the Court’s actual practice have forcefully observed that the Court’s use of foreign law has lacked the rigor and impartiality that would be necessary to make it credible. What even these scholars have not done, and what this essay ventures, is to consider these claims within the broader context of the Court’s use, and misuse, of all manner of evidence employed in connection with questions of legislative fact in constitutional adjudication.

Harry Kalven and Kenneth Karst in the Supreme Court Review: Reflections after Fifty Years

This Essay, written for the fiftieth anniversary volume of the Supreme Court Review, examines two articles in the initial volume, Harry Kalven’s on the law of obscenity and Kenneth Karst’s on legislative facts in constitutional adjudication. Both articles exhibit a scholarly temperament of engaged detachment. Unlike much recent work in constitutional law, the articles are entirely doctrinal – and not the worse for that. The articles show that the questions that scholars today regard as deep were already reasonably well understood fifty years ago. The Essay concludes by speculating that the rise of “constitutional theory” explains the disappearance of the sensibility Kalven and Karst exhibited. That rise may have conduced to characterization of those who disagreed with the writer’s preferred constitutional theory as either fools or knaves: fools, because they lacked the intellectual capacity to understand the compelling logic of the arguments supporting the theory, or knaves, because, knowing that the theory was the best one available, they willfully disregarded it in the service of their personal projects. The ideas that the constitutional questions the Supreme Court deals with are genuinely difficult and that the Justices, people of varying intellectual ability, can reasonably disagree over those questions are almost completely absent from today’s constitutional discourse – and those who try to advance those ideas are dismissed as naive (fools) or as pursuing a concealed political agenda (knaves).

Harry Kalven and Kenneth Karst in The Supreme Court Review: Reflections after Fifty Years

This Essay, written for the fiftieth anniversary volume of the Supreme Court Review, examines two articles in the initial volume, Harry Kalven’s on the law of obscenity and Kenneth Karst’s on legislative facts in constitutional adjudication. Both articles exhibit a scholarly temperament of engaged detachment. Unlike much recent work in constitutional law, the articles are entirely doctrinal – and not the worse for that. The articles show that the questions that scholars today regard as deep were already reasonably well understood fifty years ago. The Essay concludes by speculating that the rise of “constitutional theory” explains the disappearance of the sensibility Kalven and Karst exhibited. That rise may have conduced to characterization of those who disagreed with the writer’s preferred constitutional theory as either fools or knaves: fools, because they lacked the intellectual capacity to understand the compelling logic of the arguments supporting the theory, or knaves, because, knowing that the theory was the best one available, they willfully disregarded it in the service of their personal projects. The ideas that the constitutional questions the Supreme Court deals with are genuinely difficult and that the Justices, people of varying intellectual ability, can reasonably disagree over those questions are almost completely absent from today’s constitutional discourse – and those who try to advance those ideas are dismissed as naive (fools) or as pursuing a concealed political agenda (knaves).

Legislative Fact Approach to Lay Judge System (Saiban-in)

Legislative Fact Approach to Lay Judge System (Saiban-in)

The Phoenix from the Ash: Proving Discrimination by Comparators

Hidden beneath judicial and scholarly obsession with formal proof structures for individual cases is a simpler, more direct method of establishing discrimination. Taking the disparate treatment label seriously, I argue that proof requires merely that the plaintiff identify a similarly situated person of another race or the opposite sex who was treated more favorably than plaintiff. Such proof is increasingly driving litigation in the lower courts, which suggests that comparators should be moved to center stage in the antidiscrimination project However, like other efforts, the comparator approach risks falling victim to the general hostility of the courts to discrimination claims The Supreme Court in Ash v. Tyson Foods, Inc. recently rejected an extreme slap in the face rule regarding relative qualifications of plaintiff and a comparator, but Ash left in place a network of other circuit court rules that collectively seem to require each comparator to be the almost twin of the plaintiff before more favorable of him is a sufficient basis for the trier of fact to infer discrimination. The Court's latest decision in the area, Sprint/United Management Co. v. Mendelsohn, casts further doubt on the inflexible rule-orientation of many lower courts, requiring instead a holistic and contextual assessment of evidence. Nevertheless, fundamental judicial hostility remains intact. This negative view derives from common judicial perceptions that random, and even irrational, factors are more likely explanations for workplace disparities than is discrimination. Thus, only when those factors are ruled out by an almost-twin comparator will the courts permit the inference of discrimination. Absent evidence to the contrary, the courts may be justified in using their perceptions of the relative probability of discrimination as opposed to other explanations to influence their determinations as to when a jury question is created. These legislative facts are traditionally within the purview of the courts. Nevertheless, this Article contends that plaintiffs can counteract judicial perceptions, and create a jury issue, by introducing evidence both of the prevalence of discrimination generally and, more central to my thesis, by introducing expert testimony regarding comparators. Drawing on such sources as trade usage in contracts and professional standards of care in torts, this Article argues that a more objective standard should be substituted for current judicial worldviews. It recommends assessing the comparability of proffered comparators not by judicial instinct but by expert testimony about whether other employers would treat such individuals comparably to plaintiff.

La mise en oeuvre judiciaire de l'article 1 de la Charte canadienne et le droit de la preuve

The object of this paper is to show that rules of evidence are often unworkable in s. 1 Canadian Charter cases. A survey reveals that courts tend to use these rules selectively when a party attempts to demonstrably justify a reasonable limit to a guaranteed right or freedom. A parallel is made with the Supreme Court of Canada's flexibility in admitting extrinsic material in constitutional references. American law is useful in that it establishes the key distinction between adjudicative facts and legislative facts. Rules of evidence apply only to the former category. Legislative facts correspond to facts needed for a s. 1 demonstration. It should be recognized in Canada that rules of evidence are inapplicable to such facts because of the specific purpose and importance of judicial reasoning in Charter cases.