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Several years ago I was invited to speak to a class of fifth-grade students about appellate courts. One of the first difficulties I faced was describing for those students how these courts fit into our legal system. Like the rest of us, they were familiar with the drama of TV trials and movie courtrooms, but were far less knowledgeable about appellate courts, which we rarely see on the large or small screen.

I told the students that appellate courts, by reviewing earlier decisions, are concerned primarily with legal interpretation, not fact finding, and they must consider only the factual record from the trial court. This record-review rule, which arose from English Common Law, is justified by the need for finality in litigation and fairness to parties. It is so deeply woven into our appellate system that judges often use a tone of moral scorn in rejecting efforts to discuss evidence that was not considered by the trial court.

Despite this long-standing rule, the truth is that appellate courts can, and often do, consider evidence that wasn’t presented at trial. The most prominent examples involve cases when the constitutionality or meaning of a particular statute is in dispute. To know what lawmakers meant when they used certain terms, or to determine how the interpretation of the statute may affect the legal system, an appellate court must be able to examine what are known as “legislative facts” — facts describing or predicting the social, political, economic and technical state of the world. Often the need for this information isn’t apparent until the issues in a case are narrowed on appeal, so the appeal is often the first time that parties have any reason to present this evidence to the courts.

One way to present this evidence is through a “Brandeis brief,” named for U.S. Supreme Court Justice Louis Brandeis. Before joining the court, Brandeis was well known for writing policyoriented briefs laden with social science evidence. The prototypical “Brandeis brief” was the one he drafted in 1907 for his client, the State of Oregon, in Muller v. Oregon. Curt Muller, a laundry owner in Portland, was
charged with violating a state law that limited women to 10 hours of work per day; he argued the law was unconstitutional. Brandeis gathered the economic and social science literature of the time and defended the law as an “appropriate and legitimate” effort to protect the health and safety of female workers.

Although this information hadn’t been presented to the courts below, the Supreme Court considered it, reasoning that “expressions of opinions from other than judicial sources” could help its understanding, and ultimately ruling for Brandeis and his client. This precedent-setting model for appellate advocacy has been repeated many times since Brandeis’ introduction of it; it was used, for instance, by the plaintiffs in Brown v. Board of Education to introduce psychological studies demonstrating the harmful impact of segregation on non-white children.

In current appellate practice, an even more important source of new evidence on appeal is the amicus brief. Since Roman times, interested groups have used these “friend of the court” briefs to present appellate courts with information and arguments that the parties may not have raised themselves. While amici cannot introduce new facts specific to the parties and events of the case, their very existence assumes that they will present new legislative facts to the appellate courts. In 2003, for instance, the decision in Grutter v. Bollinger defined the constitutional use of race in the University of Michigan’s diversity admissions program. In that case, the Supreme Court relied heavily on factual assertions in amicus briefs about the importance of diversity in education. Those particular assertions were new to the case, and had never been challenged through cross examination or other trial-level processes.

Finally, in our increasingly wired world, it should come as no surprise that courts go online to learn information about cases on their own. Even Chief Justice John Roberts cannot resist the lure of the Internet: In an argument last year on the validity of an Arizona campaign finance statute enacted by referendum, the Chief Justice noted that he had “checked the … website” of the referendum’s primary sponsor that morning and wondered whether the site’s discussion of the purpose of the law didn’t provide “clear evidence” of its unconstitutionality.

Appellate consideration of new evidence should be a source of significant concern. The back-and-forth of trial court processes helps to test facts, ensuring accuracy and fairness. While parties can respond in writing to a Brandeis or an amicus brief, that written response is a poor substitute for the face-to-face battle of trial advocacy. And if a court relies on its own research, there may be no opportunity to respond at all. Appellate courts must be particularly sensitive to the use of new evidence on appeal, and should consider remanding cases to trial courts if the benefit of a better factual record might outweigh the cost of delay in resolving an important legal problem.

At the same time, the work of the appellate courts necessarily calls on them to evaluate questions of law. That evaluation shouldn’t happen in a factual vacuum. Particularly when evaluating “close calls” on legal questions, courts should be able to consider facts that will allow them to determine plausible legislative intent and the likely effect of their decisions without the delay that would come with a full remand. As long as those facts are not in substantial dispute, the rewards of appellate consideration of new evidence may outweigh the risks.

— Assistant Professor Jeff Dobbins teaches Civil Procedure, Federal Courts and Administrative Law, and is executive director of the Oregon Law Commission, which makes recommendations to the legislature for the correction and improvement of Oregon’s laws. This essay is adapted from his upcoming article in the Minnesota Law Review.


Jeff DobbinsJeff Dobbins

“an appellate court must be able to examine what are known as “legislative facts” — facts describing or predicting the social, political, economic and technical state of the world.”

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