William & Mary Law is no stranger to a variety of illustrious speakers on all aspects of the law. From the annual Supreme Court Preview to myriad guest lecturers the various student organizations bring in each year, students at William & Mary often find themselves faced with the difficult decision of with which speaker to spend their lunch hour on a given day.
Among the most distinguished of William & Mary’s speakers are those called upon to address the faculty and students during the law school’s annual endowed lectures. And Kenji Yoshino, the Chief Justice Earl Warren Professor of Constitutional Law at New York University School of Law, did not disappoint when he presented a talk entitled “Constitutional Factfinding: The Case of Same-Sex Marriage” during the 2014 Cutler Lecture on September 23.
Yoshino, a leading advocate for marriage equality and an anti-discrimination law scholar, was originally invited to deliver last year’s Cutler Lecture, but an unexpected snow storm that closed the university meant that Yoshino had no one to address—despite having already arrived in Williamsburg.
Thanks to the foresight of scheduling the 2014 lecture during a warm September, the Harvard, Oxford, and Yale Law graduate (who is also a Rhodes Scholar), presented his views on the distinction between law and fact as it relates to the immediate constitutional and social question of same-sex marriage.
On the surface, law and fact appear plainly different, Yoshino observed. Law is articulated by courts according to controlling precedent and subject to de novo review on appeal. Facts are discovered by a fact-finder—judge or jury, depending on the case—and are reviewed on appeal with clear error deference.
But two types of facts are addressed by courts, according to Yoshino—and this is where the law/fact distinction begins to blur. Courts make findings of adjudicative facts—the “whodunit” facts of a case, such as the fact that Kris Perry and Sandy Stier, the Prop 8 plaintiffs in California, were denied a marriage license.
In addition, courts can also make findings of legislative facts—the broad social facts not particular to a given case. For example, a court could determine that marriage is, at its core, about procreation.
The catch, according to Yoshino, is that both legislative and adjudicative facts are facts found by the court and subject to clear error review, even though only adjective facts are typically determined through the adversarial process of a trial. Legislative facts, on the other hand, are typically found by judge via non-adversarial means, such as the judge’s own research or amicus briefs.
The solution, Yoshino concluded, to the legislative fact problem is to step away from the pure distinction between law and fact, and to instead view the two on a continuum. Likewise, Yoshino argued that legislative facts should be established through adversarial testing, like a trial, and be subject to a new standard of review between clear error and de novo.
Intrigued? Good. Confused? That’s to be expected. At this point, it’s okay not to understand the fine points of the doctrines Professor Yoshino covered in his lecture. I’m a second-year law student, and I still didn’t follow his argument completely.
For a prospective student at William & Mary Law, the important take-away from this overview of the 2014 Cutler Lecture is that William & Mary allows students to engage directly with some of the top scholars on bleeding-edge issues in the law.
Even if you aren’t interest in a particular area of the law yet, speakers like Yoshino will help you explore new issues and begin to develop your views on them. And if you disagree with a speaker, that’s even better—William & Mary is a place where enlightening and respectful debate is encouraged among faculty, students, and visiting speakers.
The James Goold Cutler Lectureship was established in 1927 by James Goold Culter of Rochester, New York, to provide an annual lecture at William & Mary, the nation’s oldest law school, by “an outstanding authority on the Constitution of the United States.”
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