G. Alexander Nunn (Texas A&M University School of Law) has posted The Article III Factfinding Power (111 Minnesota Law Review __ (forthcoming 2027)) on SSRN. Here is the abstract:
Factual disputes of national consequence dominate modern federal dockets. In recent years, federal judges have been asked to determine whether widespread fraud occurred in a presidential election, whether politically charged abortion restrictions are medically sound, whether climate regulations rest on scientific data, whether FDA-approved vaccines caused injury, and whether recent deportations have any factual justification at all. The stakes of Article III factfinding can be enormous, with ramifications just as significant as any question of law.
Yet despite this manifest importance, Article III theory has developed with a pronounced asymmetry. Constitutional theory remains fixated on Marbury and the judiciary’s power “to say what the law is,” generating a vast jurisprudential canon around law declaration while leaving the extent to which Article III grants federal courts control over questions of fact remarkably undertheorized. For the first century of the Republic, that gap was mostly benign, as federal judges directly supervised the epistemic conditions of Article III factfinding through the institution of trial. But that historical norm has vanished. Criminal cases now resolve through guilty pleas entered on a prosecutor’s unilateral factual proffer. Civil disputes conclude in settlements resting on stipulated facts no adjudicator has tested. Arbitration proceeds in private forums imposed through contracts of adhesion. Administrative agencies compile evidentiary records that arrive in federal court as closed dossiers. And as external factfinding increasingly displaces the trial, federal courts are now asked merely to confer the Article III imprimatur on settled factual predicates of opaque, even dubious, epistemic provenance.
But what are the constitutional limits of external factfinding? To answer, this Article excavates and recenters the “Article III Factfinding Power,” the constitutional authority and duty of a federal court to preserve an essential baseline of epistemic legitimacy in the factfinding that grounds its judgments. Put simply, federal judges need not oversee factfinding themselves, but they must ensure external factfinding is epistemically legitimate. The Article defines this power fully, identifies its constitutional justification in text, structure, and history, and details its function as the fact-facing counterpart to Marbury. Once recognized, the Factfinding Power brings numerous doctrinal reforms into focus, implicating agency adjudication, plea bargaining, immigration courts, habeas proceedings, civil settlements, arbitration, algorithmic proof, and myriad other sites where external factfinding seeks the sovereign force of an Article III judgment. The Factfinding Power thus provides a unified theory for judicial oversight of factual predicates in the post-trial era, demonstrating that while the Constitution permits the delegation of factfinding, it forbids Article III courts from laundering epistemically illegitimate facts.
Highly recommended.