Last week, Frederick Schauer, the David and Mary Harrison Distinguished Professor of Law at the University of Virginia, delivered this year’s Tucker Lecture to a packed audience at the Millhouser Moot Court Room at Washington and Lee University School of Law. Professor Schauer gave his lecture entitled “Do Appellate Judges Find Facts as Well as Apply Law?”
Professor Schauer discussed the traditional theory that appellate courts do not find facts. Historically, appellate courts were confined to the interpretation of the law as it applies to the facts documented in the lower court records. If a fact was not to be found in the record, the higher courts were required to remain ignorant or blind towards it. Professor Schauer argued that this is false. He cited many examples of appellate courts utilizing facts that were nowhere to be found in the record, such as the infamous Brandeis Brief and Brown v. Board of Education. He went on further to claim that appellate fact finding is commonly done and that the legal system would do well to openly acknowledge its existence and incorporate it into legal procedures.
The full video can be found here.
We thank Professor Schauer for coming to speak to the legal community at Washington & Lee.