Judges make hidden factual assumptions that parties cannot challenge

Evidence

Even when a judge does not cite to nonlegal academic journals or newspapers or anything else, she is still, although less obviously, relying on sources of information that are importantly factual, that may very well be contested, and that wind up being part of the law in a somewhat under-the-table manner, even apart from the way in which such propositions may produce adverse consequences for one of the parties without that party having much or any opportunity to challenge those propositions by the normal adversarial processes, including but not limited to cross-examination. — Frederick Schauer, Thinking Like a Lawyer, 397

Categorization

• SEED: Angle: ‘the unexamined facts behind appellate rulings’ — a piece on how legal outcomes turn on un-cited, unchallengeable empirical assumptions.
• XREF: connects to: Judicial decisions are governed by beliefs about facts and rules — Ruggero J. Aldisert, Agatha D. Aldisert, Logic for Lawyers- A Guide to Clear…, 160; Deceptive judicial rhetoric does not refute explanations of behavior — Richard A. Posner, What Has Pragmatism to Offer Law?, 120; Citations to nonlegal sources make judges’ empirical assumptions contestable — Frederick Schauer, Thinking Like a Lawyer, 398 (+6 more)

Related

• Citations to nonlegal sources make judges’ empirical assumptions contestable (similarity 0.87)
• Judicial opinions typically provide legal support for decisions reached on nonlegal grounds (similarity 0.81)
• Judicial decisions are governed by beliefs about facts and rules (similarity 0.81)
• Factual propositions cannot be sustained merely by citing negative evidence (similarity 0.80)
• Traditional doctrinal explanations may genuinely explain many judicial decisions. (similarity 0.80)
• Hidden value judgments, not logic, drive key judicial decisions (similarity 0.80)
• Deceptive judicial rhetoric does not refute explanations of behavior (similarity 0.78)
• Judging requires selecting relevant facts and evaluating relative values (similarity 0.78)

Broader Connections

• Citations to nonlegal sources make judges’ empirical assumptions contestable #contradicts (0.75) — Frederick Schauer, Thinking Like a Lawyer, 398
• Judicial decisions are governed by beliefs about facts and rules #expands (0.70) — Ruggero J. Aldisert, Agatha D. Aldisert, Logic for Lawyers- A Guide to Clear…, 160
• Judging requires selecting relevant facts and evaluating relative values #expands (0.55) — Ruggero J. Aldisert, Agatha D. Aldisert, Logic for Lawyers- A Guide to Clear…, 165
• Deceptive judicial rhetoric does not refute explanations of behavior #responds-to (0.50) — Richard A. Posner, What Has Pragmatism to Offer Law?, 120
• Factual propositions cannot be sustained merely by citing negative evidence #exemplifies (0.50) — Ruggero J. Aldisert, Agatha D. Aldisert, Logic for Lawyers- A Guide to Clear…, 902