Study

The facts have never been more central to constitutional law. Federal judges have long relied on historical evidence in constitutional cases, but recent years have seen major changes. Facts, particularly historical facts, are used not only to interpret the meaning of constitutional text, but to establish doctrinal tests. In addition, observers, trial judges, and the Justices, have raised new questions about traditional adjudicative facts: the who, what, where, and when in dispute. New questions have also been raised about the so-called doctrine of constitutional fact, and standards for revisiting trial court fact-finding on appeal. In this seminar, we will read leading Supreme Court opinions relying on different types of facts, in a range of constitutional contexts.  We will read scholarship grappling with historical, scientific, and other types of facts relevant in constitutional cases, with a focus on uses of history prominent in recent Supreme Court cases.  We will discuss the role of appellate courts and standards of review.  And we will discuss the role of trial courts, reading expert reports, trial rulings, and other trial court records in constitutional cases.  Finally, we will discuss proposals to change the relevance and the standards for fact-finding in constitutional cases. There are no prerequisites.

Syllabus: 513-01-Fall2026-DRAFT-syllabus.pdf127.43 KB