The Difference Between Judicial Citations of Legal Arguments and of Factual/Empirical Arguments

July 6th, 2011

I have previously expressed my concern (here, here, here, and generally here) about courts relying on empirical data cited in articles, briefs, and even facts outside the record to consider constitutional questions. Appellate Judges are taking judicial notice of data that were introduced properly through the rules of evidence at trial. This is problematic.

But what about Judges citing legal arguments from law review articles (such as this one)? I think there is a difference between citing a law review article for a legal argument, and a law review article (or other peer reviewed study) for factual or empirical data.

A legal argument is just that–an opinion. People who read them understand that this is one person’s view of the law, and it is subject to reasonable debate.

In contrast, most empirical work presents itself as fact–X guns results in Y crime, for example. But, as we all know (or at least should know from Mark Twain), there are lies, damn lies, and statistics. Statistics can show anything; and they do. Give me a statistic that says X, and I will find a statistic that says Not-X. All-too-often, statistics masquerade as objective facts.

That is why I disregarded reliance on statistics in The Constitutionality of Social Cost.

In this Article I will assume, arguendo, that widespread gun ownership may produce net social negativities, and those seeking to restrict access to firearms are acting solely to promote public safety and eliminate negative externalities. I do not necessarily endorse these positions but assume them here to facilitate a meaningful discussion of the constitutionality of social cost. I intentionally omit any treatment of the extensive body of literature that suggests that in fact gun ownership by law‐abiding citizens produces net social benefits.

I think this also reflects a division over citing international courts. Frequently, Justice Ginsburg argues that citing a foreign court is no different than citing a law review article. While they are both persuasive, an argument in a law review article is candidly viewed as subject arguments. Some professor writing stuff, trying to get tenure.

In contrast, a foreign court (rightly or wrongly) is viewed as a neutral statement of the law, in much the same way that studies about empirical data are. I don’t think this is usually the case.

And no, I am not just writing this because I got cited by a Court and I need to rationalize it. I have been thinking about this for some time, and I finally had the motivation to blog this (yes there are lots of things I don’t blog because I don’t have time, contrary to what my 2300 blog posts in 2 years suggest).