Pieter S. De Ganon has a cool student note in the NYU Law Review, titled Noticing Crisis, that has some implications for my Second Amendment work. Here is the abstract:
This paper contends that the Supreme Court has systematically used the doctrine of judicial notice to portray the nation’s schools as rife with crisis. Ignoring the record before it, the Court has relied on the “crisis” it has manufactured to curtail students’ Fourth Amendment rights. Critiquing this practice and likening it to the Court’s invocation of “emergency” in the context of war and natural disaster, this paper concludes that the Court ought to be held more accountable for the “facts” that it judicially notices.
And from the paper:
Judges take judicial notice of facts they deem relevant to a particularcase. They may take judicial notice of “adjudicative facts”—thespecific, on-the-record facts of the case6—only when such “facts areoutside the area of reasonable controversy.”7 But no such sine quanon governs “legislative facts,” which are facts extrinsic to the particularcase that “inform the tribunal’s legislative judgment.”8 The scopeof legislative facts is practically unlimited: Judges may invoke any legislativefact they choose, unconstrained by rules of evidence or procedure.9 It is this flexibility that has enabled the Court to invoke crisis.10
Crisis, conceptually, is the use of general possibility to trump particularfact. At heart, it is a jurisprudence of uncertainty, justifying theabridgment of individual rights and the coincident expansion of executivepower in the name of prudence: exemplifying “what may be”rather than “what is.”11 Noticed crisis is comparable to the betterknown“state of emergency” or “state of exception,”12 and poses thesame fundamental threat to liberty: the normalization of the exceptional.But crisis is worse in two ways. First, the Court participates increating the crisis. Rather than passively deferring to one party’s contentionthat there is an emergency, the Court both authors the threatby judicially noticing—and thereby effectively manufacturing—thecrisis, and delimits the derogation of rights ensuing therefrom byruling based on a factual scenario that it has distorted through judiciallynoticed facts.13 Second, because crisis is centered not arounddiscrete, time-limited incidents—such as wars or natural disasters—but instead around amorphous social threats—such as crime waves ordrugs in schools—it is more likely that the perceived threat and thesocial and legal reaction thereto will become, or be made,permanent.14
This Note aims to be descriptive and diagnostic—to lay bare themechanics of and the theory underlying judicially noticed crisis.15 Thenormative claims follow from the diagnosis: The Court should be heldmore accountable for the “facts” of which it takes notice. That theConstitution may be “adapted to the various crises of human affairs”16cannot mean that the Court may fabricate crises to mold theConstitution to its liking. To flesh out this normative stance, the Noteexamines the sobering example of the World War II JapaneseAmerican cases.17 In those cases, the Court took extensive judicialnotice of legislative facts bespeaking an emergency, which it failed tocorroborate by scrutinizing the record. The result was disastrous.18Lest the Court continue to use judicial notice to reach its preferred policy outcomes, its members ought to “do what they should doanyway: stay close to the record in each case that appears beforethem, and make their judgments based on that alone.”19
While this note considers crises such as war, I would think the analysis applies to a crisis that plagues Justice Breyer’s opinions in Heller and McDonald–a firearm crisis. Taking judicial notice of varied statistics showing high rates of gun violence–notwithstanding recent data showing crime rates are plummeting–effectively permits him to minimize the liberty interests, and, perhaps, reach his preferred policy outcome.
Indeed, the entire notion of judicial notice relies on the facts being beyond dispute. As Twain wrote there are lies, damn lies, and statistics. The Supreme Court effectively taking judicial notice of facts never introduce at trial that are disputed. This may be fodder for future works.
This over reliance on statistics, and judicial notice–a factor that I did not previously consider–plays an interesting role in the constitutionality of social cost.