Appellate deference in the age of facts.

AuthorYoshino, Kenji

ABSTRACT

This Article explores the question of how much appellate deference is due to "legislative" facts, or broad social facts about the world, established by the district courts. While it is axiomatic that "adjudicative" facts--which are the "whodunit" facts specific to a case--receive clear error deference on appeal, the Supreme Court has yet to address the degree of deference due to legislative facts. While the dominant view among appellate courts is that legislative facts should only receive de novo review, the practice of the courts has in actuality been much more fitful and inconsistent. The standard may be unsettled in part because the two extant alternatives--clear error and de novo review--both raise serious concerns. This Article proposes an intermediate "significant weight" standard, in which the deference accorded to a finding below corresponds to the degree of adversarial testing to which the finding was subjected.

TABLE OF CONTENTS INTRODUCTION I. THE STATUS QUO A. The Supreme Court, in Decision and Dictum B. The Supreme Court, in Practice 1. Justice Alito Supports Clear Error Deference for a Legislative Fact 2. Justice Alito Rejects Clear Error Deference for Legislative Facts 3. Justice Ginsburg Supports Clear Error Deference for a Legislative Fact 4. Justice Ginsburg Rejects Clear Error Deference for Legislative Facts II. AN UNPALATABLE CHOICE A. The Problem with De Novo Review 1. De Novo Review Flouts the Institutional Competence of the District Courts 2. De Novo Review Ignores the Dangers of Appellate Fact-Finding 3. De Novo Review Creates Bad Incentives for the District Courts 4. De Novo Review Creates Bad Incentives for the Appellate Courts B. The Problem with Clear Error Review 1. Clear Error Review Offers Too Much Deference to District Court Findings Made Outside Such Courts' Institutional Competence 2. Clear Error Deference Can Upend the Hierarchical Structure of the Courts III. THE INTERMEDIATE STANDARD OF REVIEW CONCLUSION INTRODUCTION

We live in the age of facts. Courtesy of the digital revolution, more people can access more facts with more ease than ever before in human history. (1) The great democratization of fact-finding has granted us the capacity to make more informed decisions about myriad topics--to be, if not experts, better-educated laity. Alongside the culture of fact, however, we have seen the rise of what might be termed the culture of facticity. In this culture of contrivance, we seem increasingly entitled not just to our own opinions, but also to our own facts, and increasingly encouraged to believe that facts are not stubborn things, but rather pliant or even complaisant ones.

These cultures of fact and facticity have inevitable ramifications for the law. In this Article, I bite off a piece of one fact-related conundrum that is not new, (2) but increasingly urgent. I concern myself with how broad facts about the world should be established and reviewed by judges in an adversarial system. While it may at times seem I am chewing more than I have bitten off, my hope is that the Article will open onto a suite of questions--from the question of how courts know, to how law knows, to how we, as human beings, know.

Within our federal system, district courts have a special fact-finding capacity. According to conventional wisdom, their institutional competence means their findings of fact are reviewed for clear error, while their findings of law are reviewed de novo. Yet this tidy maxim does not adequately describe current realities. We can see this best by returning to Kenneth Culp Davis's path-marking 1942 article, which distinguished "adjudicative facts" from "legislative facts." (3) Adjudicative facts are "facts concerning immediate parties--what the parties did, what the circumstances were, what the background conditions were." (4) These facts have also been called "case-specific" (5) or "historical" (6) or even "whodunit" (7) facts. Legislative facts--sometimes described as "social" (8) facts--are, on the other hand, "facts which are utilized for informing a court's legislative judgment on questions of law and policy." (9) An adjudicative fact might provide the answer to whether a driver exceeded the speed limit, whether a signature was forged, or whether a person read a contract before signing it. Cognate legislative facts might clarify whether underage drivers are more likely to speed, whether forged signatures are easy to detect, or whether people generally sign standardized contracts without reading them. To be clear, calling these "legislative" facts is a hopeless (but hopelessly entrenched) misnomer. As used in this Article and in this literature, legislative facts are found by the courts, not by the legislature--the adjective does not denominate the source of the fact, but rather the function of the fact in the judicial process.

Armed with this distinction, we see that appellate courts generally grant clear error deference only to adjudicative facts. (10) The consensus among appellate courts is that legislative facts are reviewed de novo. However, the Supreme Court has never gone beyond dictum on this point, and its own practice has been inconsistent. Part I maps the disarray.

In Part II, I examine proposed resolutions of this uncertainty. In considering fixes, courts and commentators have largely restricted their debate to which of two extant standards--de novo or clear error review--is more appropriate for legislative facts. Yet these standards were developed for the law/fact distinction, not for the fact/fact distinction. I contend that neither de novo review nor clear error review is appropriate.

Part III proposes a new intermediate standard of review. This "significant weight" standard would accord a floating level of deference to the district court's fact-finding with regard to legislative facts. The degree of deference would correspond to the degree of adversarial testing (broadly construed) to which the legislative facts had been subjected.

  1. THE STATUS QUO

    Trial courts issue findings of fact and conclusions of law. (11) Under Federal Rule of Civil Procedure 52(a)(6), "[f]indings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court's opportunity to judge the witnesses' credibility." (12) Rule 52 makes no distinction between the kinds of facts in question. (13) Conclusions of law, in contrast, are reviewed de novo--the district court receives no deference. (14)

    1. The Supreme Court, in Decision and Dictum

      To understand how clear error deference works in the general case, consider the Supreme Court's 1985 decision in Anderson v. City of Bessemer City. (15) In that case, the district court found that the plaintiff had been denied a position with the city because of her sex. (16) The court of appeals reversed because it disagreed with many of the lower court's findings. (17) The Supreme Court reinstated the district court's ruling, noting that "[w]here there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." (18) Clear error deference required more than simple disagreement with the trial court's findings. (19) "A finding is 'clearly erroneous,"' the Court had observed in 1948, "when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (20)

      Though the Court had no reason to term it so, the trial court's core finding in Anderson was manifestly an adjudicative fact, as it pertained to an action specific to the plaintiff in the case. (21) It is not obvious that the Court intended Anderson's clear error deference to extend to legislative facts. Indeed, during the next Term, the Court suggested in dictum in Lockhart v. McCree that legislative facts should not receive clear error deference on appeal. (22) The Court in Lockhart addressed the constitutionality of a jury from which prospective jurors with a categorical objection to the death penalty had been excluded. (23) On habeas, the district court had found "that 'death qualification' produced juries that 'were more prone to convict' capital defendants than 'non-death-qualified' juries." (24) Finding that the "death qualification" violated the "fair-cross-section and impartiality requirements of the Sixth and the Fourteenth Amendments," the court granted habeas relief, and the Eighth Circuit affirmed. (25) In reversing, the Court included a footnote stating:

      McCree argues that the "factual" findings of the District Court and the Eighth Circuit on the effects of "death qualification" may be reviewed by this Court only under the "clearly erroneous" standard of Federal Rule of Civil Procedure 52(a). Because we do not ultimately base our decision today on the invalidity of the lower courts' "factual" findings, we need not decide the "standard of review" issue. We are far from persuaded, however, that the "clearly erroneous" standard of Rule 52(a) applies to the kind of "legislative" facts at issue here. The difficulty with applying such a standard to "legislative" facts is evidenced here by the fact that at least one other Court of Appeals, reviewing the same social science studies as introduced by McCree, has reached a conclusion contrary to that of the Eighth Circuit. (26) This footnote is the closest the Court has come to ruling on the issue. As one commentator has stated, "[i]t is unpardonable that the Supreme Court has not established a principled, explicit framework for the judicial reception and evaluation of such facts." (27)

      Appellate courts both before and after Lockhart have taken the "no deference" view. In 1982, Judge Posner discussed this issue when Jewish basketball players challenged an athletic association's rule that prohibited basketball players from wearing yarmulkes during games. (28) In ruling for the...

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