Scott A. Moss


Whatever the merits of minimalism in constitutional adjudication, this Essay argues that in another aspect of federal adjudication--what this Essay terms “reluctant judicial factfinding”--we already have too much minimalism. In certain areas of law, courts are quite reluctant to engage in close scrutiny of critically important facts, instead falling back on policies that avoid such factfinding. Parts II, III, and IV discuss each of these three areas of reluctant judicial factfinding. Then, Part V offers some thoughts as to possible causes of this reluctance to undertake factual inquiries that statutes, rules, and Supreme Court precedent instruct district and appellate courts to undertake. One possibility is that hostility to litigation motivates courts to shy away from detailed factfinding that certain cases require. Such hostility likely is part of the story--at least as to some courts that exhibit an unusual degree of hostility to certain kinds of cases. But more fundamentally, even a judge not at all hostile to litigation may shy away from the sort of detailed factual look at a party that would require the judge to second-guess attorney motivations in discovery, to second-guess judgment calls by complex institutions such as prisons or universities, or to second-guess the details of a workplace anti-bias program. Such reluctance may derive from an otherwise commendable judicial modesty--yet in the three areas this Essay discusses, judicial second-guessing of litigants is mandated by law, and refusal to second-guess just yields poor factual findings. In short, judges should not shy away from aggressive factfinding roles where their authority and need to do so is clear, even if it stretches judges past understandable limits of their comfort zone.