Waldman, Ari Ezra, Manufactured Uncertainty in Constitutional Law (September 6, 2022). Fordham Law Review, Vol. 91, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4211548 or http://dx.doi.org/10.2139/ssrn.4211548

“Civil rights litigation is awash in misinformation. Courts find that abortion causes cancer, that adolescent hormone therapy is irreversible, that in-person voter fraud is a growing problem. Except none of that is true. The conventional scholarly account about misinformation in the law focuses in part on biased legislatures, interested amici, and judicial deference to legislatures. This account implies legislatures and amici have too much unconstrained power to engage in perfunctory fact-finding and to rely on misinformation, “alternative facts”, or outright falsehoods to justify laws that harm and restrict the rights of marginalized populations. At the same time, the literature suggests that judges and the law are inundated with uninterrogated claims, incapable of sifting through the muck, and held hostage by rules of deference. So framed, the conventional account proposes to empower judges to interrogate the processes of legislative fact-finding and the factual predicates of legislative action. This Article challenges that account. It demonstrates that the problem of misinformation in the law is not limited to legislatures and amici. Rather, the problem is built into doctrine itself. This Article argues that in fact-intensive constitutional cases, doctrines of constitutional scrutiny—rational basis, strict scrutiny, and balancing tests—can all collapse into a single question: Is the scientific consensus infallible? And because few, if any, scientific studies are perfect, any of these methods of constitutional analysis can manufacture factual uncertainty to justify restricting rights. The result is not just uncertainty, chaos, and indeterminacy. This pattern of doctrinal collapse routinely and consistently serves to reify traditional hierarchies of power. Learning lessons from the legal realist and critical studies traditions, this Article reframes the problem of misinformation in constitutional litigation from a narrow focus on fact-checking to a broader problem of legal doctrine and judicial power. Therefore, contrary to the current literature, which seeks to give judges more power to distinguish among factual claims, this Article takes a more holistic approach, focusing on political economic, doctrinal, and institutional change.”