Corralling Constitutional Fact: De Novo Fact Review in the Federal Appellate Courts

Abstract

No two terms of legal science have rendered better service than "law" and "fact." They are basic assumptions; irreducible minimums and the most comprehensive maximums at the same instant. They readily accommodate themselves to any meaning we desire to give them.. .. What judge has not found refuge in them? The man who could succeed in defining them would be a public enemy. They may torture the souls of language mechanicians who insist that all words and phrases must have a fixed content, but they and their flexibility are essential to the science which has to do with the control of men through the power to pass judgment on their conduct. Leon Green 1 We acknowledge that there are more verbal formulas for the scope of appellate review. .. than there are distinctions actually capable of being drawn in the practice of appellate review. But even if, as we have sometimes heretically suggested, there are operationally only two degrees of review, plenary (that is, no deference given to the tribunal being reviewed) and deferential, that distinction at least is a feasible, intelligible, and important one.

Explaining legal inconsistency

“…If δ is not a shared balancing test, F (δ) is nonempty. worried it will be applied in inappropriate situations (see, e.g., Hoffman, 2001;Redish and Gohl, 2017). The results here provide a formal theoretic result to support such a concern.…”

“…Perhaps most troubling, heightened standards of review tend to be applied in cases regarding civil liberties such as First and Fourth Amendment rights (Hoffman, 2001;Redish and Gohl, 2017). For example, consider the determination in Ornelas to subject probable cause determinations to de novo review.…”

“…Similarly, some circuits hold that whether speech constitutes a "true threat" unprotected by the First Amendment is a fact reviewable de novo, though other appellate courts disagree (Redish and Gohl, 2017, 292). Heightened review of facts is applied in many First Amendment contexts, from cases involving freedom of speech to those implicating religious freedoms (Hoffman, 2001(Hoffman, , 1453(Hoffman, -1455. The legal rules governing arguably our most important freedoms, for which there is often disagreement such that the first sentence of Proposition 1 may not apply, may be the areas in which courts most often apply increase scrutiny on findings of doctrinal facts.…”

Safeguarding Fair Use Through First Amendment’s Asymmetric Constitutional Fact Review

“…71 Without some way to cabin the doctrine, the worry is that independent review will swallow the entire appellate docket-or else be abandoned altogether. 72 A limiting principle is thus needed because indiscriminate application of plenary appellate review is normatively undesirable and practically unworkable. 73 This Article proposes a one-way, asymmetric review of constitutional facts in speech-implicating cases, which has been further elaborated elsewhere.…”