A Trial of Fact?

 A court in the United States operates and discerns two things: matters of fact and matters of law.  Typically courts establish matters of fact so that they can make decisions about matters of law.  However, as our information ecosystem becomes more compartmentalized, there might be an advantage to consider a new type of trial: A trial of fact.

In this type of trial, a court would be asked to make no judgement of the law, but instead merely consider opinions and make a statement of fact… which then the rest of the government would be obligated to follow.  For example, the courts could be asked to render a judgement on “there was not evidence of widespread fraud in the 2020 presidential election.” If this statement was found to be “factual,” it would be improper for any agent of any branch of government to assert otherwise in the conduct of their official business.  This would not impact free individual speech, but only the speech that is used to debate / develop legislation or administer the programs of the executive branch.

This may seem like “overkill,” but just as increased litigation has helped us to maintain a common set of behaviors in the face of divergent moral beliefs, the concept of a trial of fact might help us maintain a common set of of facts in the face of divergent views of reality.  Certainly, it would be better if this was not necessary, but without a concept to anchor ourselves to, it seems increasingly difficult to maintain a shared, accepted view of reality upon which we can build discourse.

The courts of the United States are empowered by the Constitution to deal with “cases” and “controversies.”  We have reached a time when facts themselves are controversial and not agreed upon.  This would be an expansion of the typical responsibilities of our judicial system, but could be instrumental in helping to break the bottleneck caused by the failure of opposing parties to acknowledge the factual basis for many specific topics of debate.

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