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ARTICLE II. JUDICIAL NOTICE COMMENTARY

Table of Contents

Article I. General Provisions
Article II. II. Judicial Notice
Rule 201
Rule 202
Rule 203
Rule 204
Article III. Presumptions
Article IV. Relevancy and Its Limits
Article V. Privileges
Article VI. Witnesses
Article VII. Opinions and Expert Testimony
Article VIII. Hearsay
Article X. Contents of Writings, Recordings, 
and Photographs
Revised Rule 202(e). Judicial Notice of Legislative Facts Commentary 202(e).  

This is the most important provision of Revised Rule 202. Those commentators who have argued for an evidentiary rule governing legislative facts have lamented the lack of any procedural safeguards for the litigants.

The provisions governing judicial notice of legislative facts should be in accordance with existing judicial practices -- permitting judicial notice of disputable legislative facts, requiring minimal procedural safeguards, and calling for formal findings when the fact noticed is critical to the resolution of the controversy.

As Revised Rule 202 makes clear, the court is not required to notify the parties of every legislative fact judicially noticed. Such a requirement would clearly be unreasonable. Therefore, the requirement for notice and opportunity to be heard must be much less rigid than is required with judicial notice of adjudicative facts. The court, however, should seriously consider allowing parties to submit arguments and information regarding legislative facts that are central to the controversy or that would aid the court in assessing the issues. Allowing parties to assist the court in making decisions as to legislative facts "would guard against judicial error by supplying the judge with additional information with which to evaluate the propriety of taking judicial notice." Finally, allowing the parties an opportunity to be heard as to legislative facts is not out of line with current judicial practice, as typified by the following district court opinion:

A court's power to resort to less well known and accepted sources of data to fill in the gaps of its knowledge for legislative and general evidential hypothesis purposes must be accepted because it is essential to the judicial process. . . .

In view of the extensive judicial notice taken, based partly upon the court's own research, the court issued a preliminary memorandum and invited the parties to be heard on the "propriety of taking judicial notice and the tenor of the matter noticed" upon motion made within ten days. This procedure complies with the spirit of Rule 201(e) of the Federal Rules of Evidence. . . .

Inviting parties to participate in such ongoing colloquy has the advantage of reducing the possibility of egregious errors by the court and increases the probability that the parties may believe that they were fairly treated, even if some of them are dissatisfied with the result.

Accepting this invitation, the defendant Hattori submitted affidavits and separate materials and reargued the motion. These submissions were most helpful and resulted in the court's modifying a number of conclusions, but not the final result.

For these reasons, Revised Rule 202 is essential to the judicial process. The court should give serious consideration to allowing parties to participate in establishing legislative facts in all situations where the facts are an important part of the court's decision. Allowing the parties to participate will reduce the risk of error and increase the satisfaction of the parties with the result reached by the court.