Law, College of
Nebraska Law Bulletin (Selected Issues)
Date of this Version
9-18-2022
Document Type
Article
Citation
Nebraska Law Bulletin (September 18, 2022)
Abstract
This essay depicts two causal processes that demonstrate how, in the American legal system, the fact-finding plane is more fundamental than the substantive law (or substantive rights) plane. In the first process, a priori policy judgments about what facts should be available, and a priori epistemological claims about what facts can be available, drive expansions, contractions, and intentional reaffirmations of legal rights’ substantive scope. In the second process, factual wrinkles in individual cases are seized upon by judges and/or litigators and exercise an outsized influence on the development of substantive law. Although these processes are present across different areas of law, they are particularly visible in constitutional criminal procedure. Therefore, this essay focuses on how the two processes manifest in constitutional criminal procedure.
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