The Adversarial Myth: Appellate Court Extra-Record Factfinding

The United States\u27 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\u27s 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\u27s current procedures were designed to address adjudicative facts-facts particularly within the legislative facts-more general facts about the state of the world. Recognizing knowledge of the parties-but many cases turn instead on 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

The Collateral Consequences of Ex Post Judicial Review

Judicial review produces disruptions to democratic preferences that are not constitutionally required. Judicial review produces these disruptions because the law the Court declares unconstitutional is not automatically replaced with the laws that policymakers would have enacted had they known their preferred policy was unconstitutional. The Court is institutionally ill-equipped to address these disruptions, and the coordinate branches are often unwilling or unable to do so—unwilling because their membership has changed since the law was enacted, or unable because of institutional features that make quick response difficult. Under either scenario, these disruptions are cause for concern. Yet they are virtually inevitable under our current system of ex post judicial review. The answer is not to abandon judicial review, which plays an important role in our constitutional structure, but to reconceptualize it. This Article offers preliminary thoughts on what a system of ex ante judicial review might look like and argues that such a system would also address the policy distortions and significant legal uncertainties caused by our current system. Recognizing that such radical reforms are unlikely to be imminent, the Article also offers a number of more modest proposals that could help address these greater-than-necessary democratic disruptions in the short term. Finally, the Article argues that the Supreme Court has not taken even these modest steps because it is unwilling to acknowledge the policy disruptions its decisions often produce. This lack of honesty about its role may impair the Court’s ability to fill that role effectively