Professor Caitlin Borgmann writes in with a comment following up from my recent post about Justice Breyer googling (which was picked up by Business Insider), and on an amicus brief in the Hobby Lobby case that introduces new scientific research about emergency contraception (EC).

A student familiar with my research alerted me to your recent post, “Breyer: The Record Isn’t So Clear So I Googled It.”  I then read with interest your other posts on extrarecord judicial factfinding on appeal.  I share your concerns about this problem and am glad you’re raising these issues.  I just published an article on this topic with the California Law Review and have attached it in case it’s of interest.  I argue that Fed R Civ P 52(a)(6) should apply to all facts, not just adjudicative or case-specific facts, making it inappropriate for courts to rely on amicus briefs for determinative facts.  Regarding the issue of how emergency contraception works, I think that if the studies cited in the PRCH brief are not int he record below, and if facts about how EC works are determinative to the Court’s decision, it should remand for further trial court factfinding on that issue.  Scientific understanding on how EC pills work has recently become much clearer (as evidenced by the drug label change in Europe), and it would be bad for the court to base a decision on old/incorrect science, just because the parties and/or lower courts did not address the issue below.  On p. 1218 of my article, I suggest that amicus briefs may serve an important role in alerting the court (and parties) to key facts not developed in the record.  But because of the dangers inherent in judicial reliance on amicus briefs for determinative facts, and because I think that Fed R Civ P 52(a)(6) should apply to all facts, including social facts like how EC works, I don’t think courts should rely solely on the amicus briefs for such facts.  On Daubert specifically, it’s not clear whether it applies to social facts (David Faigman would argue, for example, that it doesn’t).  But as a matter of practice, trial courts tend to apply it, even to social facts.  That, among other things, makes trial courts a better forum than appellate courts for fact determinations, in my opinion.

There is great confusion among scholars and courts about whether and when appellate courts may, or must, defer to trial courts’ findings of social fact in constitutional rights cases. The Supreme Court has never directly decided the question and indeed has addressed it only once, in passing. A common assumption, promoted by scholars and adopted as binding by some circuits, is that the deferential, clearly-erroneous standard of Federal Rule of Civil Procedure 52(a)(6) does not apply to social facts. This article challenges that assumption. There is nothing in the text of the rule that supports this conclusion. Moreover, except in certain, readily identifiable circumstances, it makes sense for appellate courts to defer to trial courts’ findings of social fact. Federal bench trials are better suited than the appellate process to vetting social facts when laws are challenged as violating constitutional rights. There is rarely a reason, other than rhetorical, for appellate courts to venture beyond the trial record to determine key social facts in such cases. In the instances when such facts are missing, a remand for further factfinding at the trial level will often be workable and appropriate. Since a court’s findings of social fact can determine whether constitutional rights claims succeed or fail, it is crucial to achieve a clearer understanding of the roles and respective authority of appellate and trial courts in factfinding in constitutional rights cases. This article sorts out the tangle of rules and precedents concerning appellate review of trial court factfinding in the constitutional rights context. It then proposes a framework for assessing whether and when appellate courts should defer to trial courts’ findings of social fact in constitutional rights cases.