Rethinking Judicial Deference to Legislative Fact-Finding

56 Pages Posted: 28 Feb 2008 Last revised: 22 Apr 2009


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 fact-finding on relevant issues of social fact. This simplistic formula, however, does not accurately describe the courts’ confused approach to legislative fact-finding. Although the courts often speak in terms of deference, they follow no consistent or predictable pattern in deciding whether to defer in a given case. Moreover, blanket judicial deference to legislative fact-finding would not be a wise general rule. Because social fact-finding plays a decisive role in constitutional analysis, blind judicial deference would undermine the courts’ responsibility to protect basic individual rights and liberties. Judicial treatment of legislative fact-finding 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 legislation that curtails basic individual rights, even when those rights do not receive strict or heightened scrutiny. This approach is unique in ensuring a baseline protection for important 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 fact-finding 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 fact-finding through case studies, including “partial-birth abortion,” gay parenting, and indecency on the Internet. Moreover, the Article argues, because of the courts’ traditional and vital role in protecting basic individual rights, the proposed paradigm honors constitutional structural principles.

Keywords: legislative factfinding, legislative fact-finding, judicial review, social facts, deference, individual rights, factfinding, fact-finding, Gonzales v. Carhart

Suggested Citation

Borgmann, Caitlin E., Rethinking Judicial Deference to Legislative Fact-Finding. Indiana Law Journal, Vol. 84, No. 1, 2008, Available at SSRN:

Caitlin E. Borgmann (Contact Author)

CUNY School of Law ( email )

2 Court Square
Long Island City, NY 11101
United States
718-340-4503 (Phone)


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