Tomer Kenneth (University of Southern California Gould School of Law; New York University (NYU) – Information Law Institute) has posted In Defense of Factual Precedents (93 University of Chicago Law Review (forthcoming)) on SSRN. Here is the abstract:
Courts rely on legal precedents to resolve legal questions. Should courts rely on factual precedents to resolve factual questions? The idea is not baseless. Courts often rely on prior courts’ decisions to determine ‘general facts,’ such as recidivism rates, the dangers of a toxin, or the history and tradition of a legal norm. The Article draws attention to this overlooked practice and then poses a key question: How should a court decide about a general fact that another court has previously determined? Should the subsequent court follow the prior court’s factual conclusion? Ignore it? Treat it as binding? This is the question of factual precedents.
The Article argues that courts should engage with, but not necessarily follow, prior courts’ factual conclusions. Briefly, it advocates for presumptive factual precedents. To defend this view, the Article develops a comprehensive framework for understanding and normatively supporting factual precedents. It explains how they structure judicial discretion, guide litigants’ strategies, and enhance the legitimacy of judicial decisions about facts. The article thus complements existing scholarship, which mostly criticized factual precedents and narrowly focused on facts determined by the Supreme Court. More broadly, the Article demonstrates how principles of judicial decisions about law can illuminate and improve judicial decisions about facts.
Highly recommended.