Law, Fact, and Discretion in the Federal Courts: An Empirical Study

55 Pages Posted: 11 Apr 2011

See all articles by Robert Anderson

Robert Anderson

Pepperdine University - Rick J. Caruso School of Law


The organization of the federal judiciary rests upon a division of labor between trial courts and appellate courts. Central to this division of labor is the standard of review, which requires that appellate courts review factual and discretionary decisions deferentially. The conventional wisdom is that appellate courts almost never reverse trial court findings of fact and rarely reverse discretionary decisions. The prevailing view, however, is greatly oversimplified. Data from federal cases suggest that standards of review operate in a much more complex and nuanced way than the conventional account would indicate. The empirical evidence suggests that the appellate courts routinely revisit factual determinations by the trial courts, although often not transparently, and that appellate courts do so on an ideological basis. Indeed, the analysis suggests the surprising conclusion that the clear error standard of review for district court fact-finding is among the most ideologically charged contexts for federal appellate review – as ideologically charged as civil rights and civil liberties appeals. The Article argues that asymmetric information between the trial and appellate courts, which reaches its height in the fact-finding context, accounts for the ideological character of review of fact-finding.

Keywords: federal judiciary, trial courts, appellate courts, standard of review, reversal, empirical evidence, factual determinations, findings of fact, fact-finding, clear error

JEL Classification: K4, K41

Suggested Citation

Anderson, Robert, Law, Fact, and Discretion in the Federal Courts: An Empirical Study. Utah Law Review, Vol. 2012, No. 1, 2012, Pepperdine University Legal Studies Research Paper No. 2011/12, Available at SSRN:

Robert Anderson (Contact Author)

Pepperdine University - Rick J. Caruso School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

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