Garrett-- evidence and reality

Malla Pollack L10MXP1 at WPO.CSO.NIU.EDU
Wed Feb 21 16:17:13 PST 2001

Like the dissent, I find Garrett troubling in large part because of the
majority's attitude toward Congressional fact finding; the Court also
seems to want Congress to follow some non-existent rule book on how to
write out supporting documents.  Majority at 12 "Justice Breyer's
Appendix C consists not of legislative findings but of unexamined,
anecdotal accounts of "adverse, disparate treatment by state officials."
 I would like the Court to have a stronger sense of reality.
Congressional "findings" are no more (or less) reliable than
Congressional reports written by staff members.  For example, the
abortive Collections of information Antipiracy Act, S 2291, 105th Cong.
included a long list of "findings" (section 2) which were unsupported by
any testimony to the drafting subcommittee.  See Pollack, The Right to
Know?, 17 Cardozo Arts & Ent. L.J. 47, 90-92 & n.238.  I find much more
reality in the hundreds of "anecdotes" Breyer lists.  To borrow a phrase
used in "The Winds of War" about the holocaust, the Court seems to have
a "will not to believe."  Sadly,

Malla Pollack
Visiting Assoc. Prof. of Law
Northern Illinois Univ., College of Law
DeKalb, Illinois 60115
815-753-1160; (fax) 815-753-9499
mallapollack at
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