Keywords
constitutional law; civil rights litigation; misinformation
Abstract
Civil rights litigation is awash in misinformation. Litigants have argued that abortion causes cancer, that gender-affirming hormone therapy for adolescents is irreversible, and that in-person voter fraud is a massive problem. But none of that is true. The conventional scholarly account about law and misinformation, disinformation, and dubious claims of fact focuses on the power of legislatures and amici to engage in perfunctory fact-finding and to rely on “alternative facts” or outright falsehoods to justify laws that harm and restrict the rights of marginalized populations. At the same time, the literature suggests that judges and the law are inundated with uninterrogated claims, incapable of sifting through the muck, and held hostage by rules of deference. So framed, the conventional account proposes to empower judges to interrogate the processes of legislative fact-finding and the factual predicates of legislative action.
This Article challenges that account. It demonstrates that the problem of misinformation in the law is not limited to legislatures and amici. Rather, the problem is built into judging and the indeterminacy of doctrine itself. This Article argues that in fact-intensive constitutional cases, opportunistic judges manufacture factual uncertainty when there is none by reframing doctrines of constitutional scrutiny as demands for scientific infallibility. And because few, if any, scientific studies are perfect, this strategy opens the door for any study, any screed, or any claim, no matter how dubious or unproven, to put rights at risk. The result is not just uncertainty and chaos. This pattern of doctrinal collapse and biased judging routinely and consistently serves to reify traditional hierarchies of power.
Learning lessons from the legal realist and critical legal studies traditions, this Article reframes the problem of misinformation in constitutional litigation from a narrow focus on fact-checking to a broader problem of legal doctrine and judicial power. Therefore, contrary to the current literature, which seeks to give judges more power to distinguish among factual claims, this Article takes a more holistic approach, focusing on political, economic, doctrinal, and institutional change.
Recommended Citation
Ari Ezra Waldman,
Manufacturing Uncertainty in Constitutional Law,
91 Fordham L. Rev. 2249
(2023).
Available at: https://ir.lawnet.fordham.edu/flr/vol91/iss6/5