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Professor Kende, 3L Matthew Shimanovsky publish article in JOTWELL

October 24, 2012

Professor Mark Kende, the James Madison Chair in Constitutional Law and director of the Drake Constitutional Law Center, and 3L Matthew Shimanovsky have a work selected for inclusion in JOTWELL.

"Chief Justice John Roberts, Jr. made headlines during his confirmation hearings by comparing judges to baseball umpires. Now imagine that umpires had the ability to secretly obtain expert and other opinions about whether a pitch is a ball or strike.

That is the question raised by Allison Orr Larson’s important new article, Confronting Supreme Court Fact Finding. Larson’s article shows how U.S. Supreme Court justices are actually doing more of their own fact-finding, rather than just acting as the nation’s highest appellate court of law. Following Kenneth Culp Davis, she calls these findings “legislative facts,” to contrast them with “adjudicative facts.”

The article usefully explores the causes and consequences of this significant development."

Read the rest of the piece, "The U.S. Supreme Court As Fact Finder?"