Caitlin E. Borgman (City University of New York (CUNY) – School of Law) has posted Rethinking Judicial Deference to Legislative Factfinding on SSRN. Here is the abstract:
It is traditionally assumed that the role of ascertaining and evaluating the social facts underlying a statute belongs to the legislatures. The courts, in turn, are tasked with deciding the law and must defer to legislative factfinding on relevant issues of social fact. This simplistic formula, however, does not accurately describe the courts’ confused approach to legislative factfinding. Although the courts often speak in terms of deference, they follow no consistent or predictable pattern in deciding whether or not to defer in a given case. Moreover, blanket judicial deference to legislative factfinding would not be a wise general rule. Because social factfinding plays a decisive role in constitutional analysis, blind judicial deference would undermine the courts’ responsibility to protect individual rights. Judicial treatment of legislative factfinding is thus sorely in need of a coherent theory.
This Article proposes a new approach, a paradigm of selective independent judicial review of social facts. Under this model, the courts should independently review the factual foundation of all legislation that curtails individual rights, even when those rights do not receive strict or heightened scrutiny. This approach is unique in ensuring a baseline protection for all individual rights, including emerging rights, while respecting the division of power between the branches of government. The paradigm is needed because, this Article asserts, legislatures are poorly positioned to gather and assess facts dispassionately, especially when addressing laws that restrict controversial or minority rights. The process of factfinding in federal trial courts ensures a superior factual record when such rights are at stake. This Article illustrates the courts’ and legislatures’ contrasting capacities for factfinding through case studies, including "partial-birth abortion," gay parenting, and indecency on the Internet. Moreover, the Article argues, because of the courts’ vital role in protecting individual rights, the proposed paradigm honors constitutional structural principles.
A classic topic of continuing importance, with deep connections to the most important issues of constitutional theory. Reading the article, I was curious about the author’s attitude towards Lochner. Here is some more from the text:
Proponents of broad deference to legislative factfinding often point to the Lochner era to show the dangers of independent judicial review of social facts.14 But independent judicial review need not be an all-ornothing deal. My proposal takes into account the federal courts’ important responsibility to protect unpopular and minority rights, while respecting the division of power between the legislatures and the courts. In particular, my approach would allow courts to defer to legislative factfinding when legislatures seek to protect or expand individual rights.15 Moreover, because I propose independent judicial review in all cases of asserted individual rights, including rights subject to rational basis review, my paradigm accounts for emerging rights, such as the rights of lesbian and gay adoptive parents.
A good read.