Appellate Review of Social Facts in Constitutional Rights Cases
Caitlin E. Borgmann
CUNY School of Law
November 21, 2012
California Law Review, Forthcoming
There is great confusion among scholars and courts about whether and when appellate courts may, or must, defer to trial courts’ findings of social fact in constitutional rights cases. The Supreme Court has never directly decided the question and indeed has addressed it only once, in passing. A common assumption, promoted by scholars and adopted as binding by some circuits, is that the deferential, clearly-erroneous standard of Federal Rule of Civil Procedure 52(a)(6) does not apply to social facts. This article challenges that assumption. There is nothing in the text of the rule that supports this conclusion. Moreover, except in certain, readily identifiable circumstances, it makes sense for appellate courts to defer to trial courts’ findings of social fact. Federal bench trials are better suited than the appellate process to vetting social facts when laws are challenged as violating constitutional rights. There is rarely a reason, other than rhetorical, for appellate courts to venture beyond the trial record to determine key social facts in such cases. In the instances when such facts are missing, a remand for further factfinding at the trial level will often be workable and appropriate. Since a court’s findings of social fact can determine whether constitutional rights claims succeed or fail, it is crucial to achieve a clearer understanding of the roles and respective authority of appellate and trial courts in factfinding in constitutional rights cases. This article sorts out the tangle of rules and precedents concerning appellate review of trial court factfinding in the constitutional rights context. It then proposes a framework for assessing whether and when appellate courts should defer to trial courts’ findings of social fact in constitutional rights cases.
Number of Pages in PDF File: 60
Keywords: appellate review, fact, social fact, legislative fact, constitutional fact, fact-finding, factfinding, Federal Rule of Civil Procedure 52, Rule 52, clearly erroneous, Lockhart
JEL Classification: K40, K41, K10, K30, K19, K00Accepted Paper Series
Date posted: November 21, 2012 ; Last revised: November 28, 2012
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