June 19, 2020 Articles

Mixed Questions of Fact and Law: Deferential or Plenary Review?

Don't be put off by the formulaic presentation of the clearly erroneous standard of review of factual findings in the context of mixed questions of law and fact.

By Katayoun A. Donnelly

“When reviewing a mixed question of law and fact, this court reviews the trial court’s findings of fact for clear error and its conclusions of law de novo.” This is perhaps one of the most familiar statements of the scope of appellate review in state and federal appellate decisions.

At first glance, it appears that one should be able to distinguish fact questions, which “usually call[] for proof,” from legal questions, which “usually call[] for argument.” Clarence Morris, Law and Fact, 55 Harv. L. Rev. 1303, 1304 (1942). This understanding suggests a deferential appellate review of questions of fact and a plenary review of legal questions. See United States v. Boyd, 55 F.3d 239, 242 (7th Cir. 1995) (Posner, J.).

On closer examination, though, this formulaic statement of the standard of review is incomplete. It leaves out a third type of appellate review, law application—applying the controlling law and norms to the facts—which also requires plenary review. See Henry P. Monaghan, Constitutional Fact Review, 85 Colum. L. Rev. 229, 237–38 (1985) (“[I]t seems misguided to assume, as many courts apparently do, that all law application judgments can be dissolved into either law declaration or fact identification. Law application is a distinctive operation.”). In addition, it makes no mention of the constitutional-fact doctrine, which requires plenary review of constitutional facts.

These latter two types of appellate review of facts are the focus of this article.

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