The Virtue of Process: Finding the Legitimacy of Judicial Fact-Finding in Personal Injury Litigation

Abstract

This thesis is an inquiry into the legitimacy of judicial fact-finding in civil litigation. Judges make authoritative factual findings in conditions of uncertainty and the decision-making process cannot, and does not, guarantee the accuracy of those outcomes. Given the inevitable risk of error, on what basis is the authority of judicial fact-finding legitimate? This project provides a framework of procedural legitimacy that bridges two unavoidable aspects of adjudication: factual indeterminacy and the need for justifiably authoritative dispute resolution. This work draws of the legal theories of Lon Fuller and Jurgen Habermas to substantiate the notion of procedural legitimacy in the context of judicial fact-finding. The framework of procedural legitimacy is then applied to three doctrinal discourses relevant to personal injury litigation: use of scientific evidence, proof of causation, and use of probabilistic reasoning in assessing damages awards.