Shalev Gad Roisman (University of Arizona – James E. Rogers College of Law) has posted Fact Avoidance (140 Harvard Law Review, forthcoming 2026) on SSRN. Here is the abstract:
The legality of the President’s exercise of statutory power depends on questions of both law and fact. Yet courts often focus exclusively on the former, without engaging with the latter. This Essay suggests that this is no coincidence—that one reason courts focus on legal interpretation is that it permits them to avoid second-guessing the President’s factual determinations. The Essay identifies this phenomenon of “Fact Avoidance” by focusing on two major cases in the Supreme Court’s last term, Learning Resources v. Trump and Trump v. Illinois, that reflect this tendency.
Whether motivated by a conscious decision to avoid factual review or not, fact avoidance is worth grappling with. After identifying the phenomenon, the Essay explains why courts might be drawn to it. It then assesses both the costs of fact avoidance and the benefits of factual review. It closes by providing a method that courts could use to review the President’s factfinding in a principled way.
Fact avoidance might be an understandable impulse, but it need not be an inevitable one. Ultimately, the Essay argues that courts need not be as wary of reviewing the facts as they often appear to be. Factual review will entail the exercise of judgment, to be sure, but judgment is also exercised when the Court interprets the law. It need not be confined there. To the contrary, there is much to be gained by reminding the public—and the President—that the facts matter.
Highly Recommended!
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