I don't think it's correct to say that "clearly erroneous" is the most
deferential standard; rather, the most deferential standard used in the
federal courts is "substantial evidence", used to review agency findings
of fact and jury verdicts. My impression is that appellate courts aren't,
in general, all *that* deferential in applying "clearly erroneous",
particularly when there are no questions of credibility. But I'm hardly an
expert on this.
On Thu, 19 Apr 2001, Michael E. Solimine wrote:
To augment Rick's point, and if you will excuse the self-promotion, in an
earlier article I discussed this point as a systemic problem with Court
review of 3-judge district court decisions. (The Three-Judge District
Court in Voting Rights Litigation, 30 U. Mich.J.L.Ref. 79, 117-18 (1996)).
At least one of the original reasons for the court was that three heads
are better than one, and yet we have the Supreme Court on direct review
engaging in virtual de novo review of the facts. In yesterday's opinion
the majority pretty much admits this, observing that "in this instance
there is no intermediate court, and we are the only court of review." The
majority immediately goes on to say: "Moreover, the trial here was not
lengthy and the key evidence consisted primarily of documents and expert
testimony. Credibility evaluations played a minor role. Accordingly, we
find that an extensive review of the District Court's findings, for clear
error, is warranted."
Michael E. Solimine
Donald P. Klekamp Professor of Law
University of Cincinnati College of Law
PO Box 210040
Cincinnati, OH 45221-0040
phone: (513) 556-0102
fax: (513) 556-1236
email: Michael.Solimine@law.uc.edu
On Wed, 18 Apr 2001, Rick Hasen wrote:
I'm no fan of the Shaw line of cases, but Justice Thomas in
dissent seems surely right in saying that the majority here
is not engaging in a "clearly erroneous" analysis of the
district court decision, which is supposed to be the most
deferential standard of appellate review. Judges typically
don't (as Justice Breyer did here) take page after page
reanalyzing the facts and criticizing the district court's
findings under a clearly erroneous standard. They instead
seize on any evidence supporting the district court's
findings and affirm.
So it looks like the majority has implicitly decided that
these cases are essentially up for de novo review (the least
deferential standard of review), at least when the question
is whether race or politics predominates when the two are
intertwined.
Is this a good development from the point of view of those
who oppose Shaw? Not necessarily. The Court may now engage
in this kind of review when a three judge panel finds that
race does *not* predominate.
Moreover, the more searching review is sure to impose a
burden on the Court in the next decade, given that these
cases come up on direct review from three judge panels
without intermediate appellate courts to help.
--
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA 90015-1211
(213)736-1466 - voice
(213)380-3769 - fax
rick.hasen@lls.edu
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Rutgers School of Law-Camden fax *856-969-7921
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