Modern Law Review, Forthcoming
31 Pages Posted: 9 Feb 2022 Last revised: 26 May 2022
Date Written: February 4, 2022
When should an appellate court reject a trial judge’s finding of fact? One condition is when a court believes that a judge’s finding of fact is ‘plainly wrong’. This condition has been endorsed many times in English law and wider common law jurisprudence. Courts have not explained what makes a finding plainly wrong, however. Scholars have largely ignored the issue. Here I draw on recent work in epistemology to provide a new analysis of the plainly wrong standard. Rationally, a court should not both believe that a judge is a better fact finder and that the judge was wrong to find some fact. If a court does happen to believe both, then it must abandon one of these beliefs. Specifically, it should abandon the belief it is less confident of, other things being equal. So, a court should reject a judge’s finding if it is more confident that it is wrong than that the judge is a better fact finder. In a slogan: a plainly wrong finding is a definitely wrong finding. This analysis has implications beyond appellate review of judicial fact finding, including for review of administrative fact finding and for judicial deference generally.
Keywords: facts, appeals, authority, expertise, deference
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