Appellate Review of Social Facts in Constitutional Rights Cases

64 Pages Posted: 21 Nov 2012 Last revised: 7 Feb 2014

Caitlin E. Borgmann

CUNY School of Law

Date Written: November 21, 2012

Abstract

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.

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, K00

Suggested Citation

Borgmann, Caitlin E., Appellate Review of Social Facts in Constitutional Rights Cases (November 21, 2012). California Law Review, Vol. 101, 2013. Available at SSRN: https://ssrn.com/abstract=2179212

Caitlin E. Borgmann (Contact Author)

CUNY School of Law ( email )

2 Court Square
Long Island City, NY 11101
United States
718-340-4503 (Phone)

HOME PAGE: http://www.law.cuny.edu/faculty/directory/borgmann.html

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