Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Courts

PDF

William & Mary Law School

2016

Courts

Articles 1 - 1 of 1

Full-Text Articles in Law

Appellate Deference In The Age Of Facts, Kenji Yoshino Oct 2016

Appellate Deference In The Age Of Facts, Kenji Yoshino

William & Mary Law Review

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 …