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Fact-Based Courts, but What Facts?


Information is central to the litigation before America’s courts. Every day they’re in session, courts wrestle not just with interpretations of the law, but with the facts of the cases themselves. Yet legal scholar Frederick Schauer argues that the way our court system is structured makes it “more difficult for [judges and juries] to obtain the information they need than it is for most other public decision-making institutions.”

The courts, writes Schauer, are “informationally disabled.” And since the higher courts essentially make policy affecting all our lives, this may be a big problem.

Every case results in a decision, what Schauner calls the “output.” What he’s concerned with is the “input”—the world of facts. From criminal courts through the appellate system to the final arbitrator, the Supreme Court, decisions are based on the “seemingly mundane factual questions that comprise most of what [judges and juries] do: determining just who did what; and how, why, and when they did it.” 

Among such facts are many complicated “scientific, technical, financial” ones. Neither judges nor juries are, generally, experts in such matters. So, are courts “equipped to make the factual determinations that have important consequences for individual litigants and, increasingly, for social policy as well”?

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Read Frederick Schauer’s complete essay, Our Informationally Disabled Courts, in the Summer 2014 issue of Dædalus on “The Invention of Courts.”

View full story: JSTOR Daily