The choice between "de jure" and "de facto" standards of review arises whenever a legal standard is needed to identify violations of specific constitutional rights or norms in particular cases. The issue is methodological in the sense that the question is faced regardless of the particular right or norm at issue (although it is not really true that the choice between these methodologies would have no influence on the choice of rights or norms to apply). A de Jure approach limits the imposition of constitutional norms to cases in which the state has affirmatively acted to help create a particular state of affairs, whether through explicit legislation or by some other affirmative mode of exercising state power. A de facto approach focuses on a given empirical state of social affairs and, in its strongest form, imposes constitutional norms whenever a review of the social order discloses that constitutional rights or nouns are not extant, regardless of the source of their denial.
59 Wash. & Lee L. Rev. 1141-1165 (2002)
Scholarly Commons Citation
Peller, Gary, "A Subversive Strand of the Warren Court" (2002). Georgetown Law Faculty Publications and Other Works. Paper 192.