The Empirical Judiciary

Constitutional Commentary, Vol. 26, 2009

U of Cincinnati Public Law Research Paper No. 09-17

26 Pages Posted: 27 Aug 2009 Last revised: 23 Oct 2009

See all articles by A. Christopher Bryant

A. Christopher Bryant

University of Cincinnati - College of Law

Date Written: September 1, 2009


This essay reviews David L. Faigman’s Constitutional Fictions: A Unified Theory of Constitutional Facts (Oxford U.P. 2008). Constitutional Fictions is a highly original book that promises to (and should) have an enormous impact on both constitutional law scholarship and practice. The book focuses on the methods, or lack thereof, that the Court employs in receiving evidence and resolving disagreements about questions of fact in constitutional cases. In doing so, the book does the legal profession an invaluable service by identifying and articulating the many frequently unspoken questions that arise in the context of judicial consideration and resolution of legislative facts in constitutional cases. The book also documents the largely unremarked ubiquity of these questions, the wide variety of circumstances in which they occur, and the depth of the theoretical issues they implicate. Professor Faigman accomplishes all this in crisp, lucid, and admirably concise prose. Nor could Professor Faigman’s book be more timely. Several of the Roberts Court’s most salient and controversial constitutional decisions have turned on questions of legislative fact.

Constitutional Fictions treats an important topic with impressive insight. But it will not be the last word on the subject. When Constitutional Fictions finally comes round to normative and prescriptive analysis of the status quo, Faigman shies away from the broader implications of his critique. After reviewing Professor Faigman’s arguments, this review essay explores how alternative analyses might compel more sweeping changes than he suggests.

Suggested Citation

Bryant, A. Christopher, The Empirical Judiciary (September 1, 2009). Constitutional Commentary, Vol. 26, 2009, U of Cincinnati Public Law Research Paper No. 09-17, Available at SSRN:

A. Christopher Bryant (Contact Author)

University of Cincinnati - College of Law ( email )

P.O. Box 210040
Cincinnati, OH 45221-0040
United States
513-556-6805 (Phone)
513-556-1236 (Fax)

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