Posted by: captainfalcon | March 29, 2010

The basically unhappy case of foundational facts

I am in the midst of Suzanna Sherry’s essay “Foundational Facts and Doctrinal Change” (h/t Solum). Doctrinal change occurs when a legal doctrine – say, strict scrutiny (which holds that certain types of State action only pass constitutional muster if they are narrowly tailored to achieve a compelling state interest) – changes in application. A legal doctrine changes in application, roughly, if before you’d expect it to be applied in one way – to uphold affirmative action, for example – but later that is no longer the expectation it is rational to have.

The two most influential accounts of why doctrinal change happens hold variously that (a) it happens because the judiciary’s ideology changes, and (b) it happens because it needs to happen in order to maintain the judiciary’s legitimacy. Sherry says there’s a third, overlooked, possibility: (c) doctrinal change happens when judges’ assumptions about “foundational facts” shift.

Sherry, I think correctly, says that one fundamental difference between the ideological explanation and the legitimacy explanation (on the one hand) and the foundational facts explanation (on the other) is that “foundational facts drive doctrine, and are internal to it,” while ideology and legitimacy are “external” considerations. Cryptic and inchoate as Sherry’s remarks are, this seems right. Considerations of legitimacy and ideology tend to recommend that a doctrine’s application change. For ideological reasons, the doctrine’s scope should be expanded or circumscribed – strict scrutiny should be applied to all legislation that singles out a racial class, not just legislation that singles out a racial class that’s suffered discrimination. (Because, e.g., disadvantaging somebody because of his color is wrong, regardless of whether, historically, those like him have enjoyed comparative advantages due to their race.) Considerations of legitimacy, too, give reasons to redraw a doctrine’s perimeters: there’s going to be a backlash against the court unless we stop authorizing state action that gives advantages to blacks, etc.

On the other hand, shifts in assumptions about foundational facts do not recommend the circumscription or augmentation of a doctrine’s sphere of application. Instead, they have an impact on what result the doctrine generates when it’s applied in its traditional sphere.

An assumption about a foundational fact, by Sherry’s lights, takes the form of a generalized probabilistic judgment. For example: Members of class F are probably [not] motivated by motive m, or: Members of class F are probably [not] hindered in the achievement of their objectives by p. While Courts regularly evaluate what Sherry calls “decisional facts” (“[w]hether a particular defendant acted in a particular way out of a particular motive”), they have never been in the business of assessing probabilistic judgments like these. Nonetheless, Sherry claims, there are patterns of assumptions about foundational facts that the judiciary unreflectively holds. Sometimes these patterns shift. When they do, legal doctrines’ effects change, as well.

I am not going to assess Sherry’s evidence for this claim. Instead, what I am going to do is explain, by way of a hypothetical, how a shift in foundational facts can lead to a shift in the results a legal doctrine generates without causing a change (“from without”) in the doctrine’s content or sphere of application. The hypothetical is tailored to show how easily it is to conflate doctrinal change due to shifts in foundational facts with doctrinal change due to ideology. How easy it is to make this conflation suggests that foundational facts have a more general normative relevance.

Imagine the Supreme Court of X announces a doctrinal rule: the State may only redistribute resources to A if A’s hardship is not of his own making. A body of law grows in which the Court applies this rule in such a way that whenever A spends the bulk of his time at home and gives no evidence he’s seeking a job, A’s hardship is adjudged to be A’s fault. After a time, though, the doctrine shifts. It is no longer enough, to disqualify A from the redistributive scheme, for A to spend the bulk of his time at home and give no evidence he’s seeking a job. If A has children then (ceteris paribus) he is held to qualify for welfare payments.

Here are two competing explanations for this shift. First, the Court could have made an ideological decision to circumscribe the doctrine’s scope: a laggard can receive aid if that aid will benefit his children. The second possible explanation, though, cites a shift in foundational facts. Whereas before the judiciary tended (perhaps inchoately) to assume the likelihood of only two alternatives – either someone is in the workforce or in his row house getting drunk – they have recently conferred a higher likelihood on a third possibility: that someone could be in his row house completing chores and educating his kids. On this second explanation, the doctrine stays the same, but its application changes.

That’s how a shift in assumptions about foundational facts can lead to a shift in doctrinal applications. It’s also worth noting the connection between foundational facts and ideology. Presumably, someone who confers a non-negligible likelihood on someone who’s unemployed nonetheless busying himself with his children is more likely to think that giving aid to someone who’s unemployed will benefit his kids. If you think this is likely, you might become more receptive to giving the aid. This receptiveness could well result in a shift in your moral beliefs.

As it stands, my attempt to connect foundational facts and ideology is a case-specific just-so story. But, the case doesn’t seem one-of-a-kind, and the story is not entirely implausible. It is worth investigating whether our psyches routinely bridge the is-ought gap, as well as whether foundational facts account for moral outlook. If so, then uncovering assumptions about foundational facts, and testing those assumptions, is an especially worthwhile endeavor.



  1. What did you do to the formatting? It’s unreadable.

  2. Its unreadability is overdetermined; the formatting is my nod to mercy. Correcting it now…

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