say, please don t quarrel with the facts unless you have a knock-down case because if you want to get the appellate court to relitigate the facts, you re up gans the harshest standard of review available. and clear error is no small thing. outside of that narrow finding by an appellate court that somehow the district court got it wrong, filtered through that clear error standard, are there other circumstances in which it s proper for appellate courts to do their own independent fact finding outside of the record of the case that they are reviewing. i am not aware of any. there may be, but in my experience, the fact-finding is done at the trial level. the court of appeals only looks at facts under standards like
process. and who gives them the right to do that if it s not in the constitution? wr is the right of the court to substitute its views for that of the elected representatives of the people? the court has interpreted the 14th amendment to include this component. the unenumerated right to substantative due process and the court has said that the kinds of things that qualify are are implicit in the concept of ordered liberty or deeply rooted in our nation s history and tradition. those are standards that identify narrow set of activities. well, judge, in the oberfell case, justices roberts, in his descent, noted the court invalidated marriage laws of
it s a criminal case or who is liable if it s a civil case. sometimes there is even questions presented to the jury that they have to determine the facts. at the appellate level there is already a record on the court is looking primarily at the law, the legal principles that guided the decision below based on the factual record. importantly at the appellate level there are standards of review that the court of appeals applies when it decides how to reveal whether or not to reverse or affirm the judgment of the lower court. at night been very mindful, especially as a trial judge, of the standards of review. what i was prepping lawyers for oral argument before
the facts. unless you have a knockdown case because if you want to get the appellate court to relitigate the facts, you re up against the harshest standard of review available. erroneous test and clear error is no small thing. outside of that narrow finding, by an appellate court, that somehow the district court got it wrong, filtered through that clear error standard, are there other circumstances in which it s proper for appellate courts to do their own independent fact finding outside of the record of the case that they re reviewing? i am not aware of any. there may be. but in my experience, the fact finding is done at the trial level. the court of appeals only looks at facts under standards like
if it s a civil case and sometimes there are even questions presented to the jury. that they have to determine the facts. at the appellate level, as you said, there is already a record and the court is looking primarily at the law. the legal principals that guided the decision below, base on the factual record and importantly, at the appellate level, there are standards of review that the court of appeals applies when it decides how to review, whether or not to reverse or afirm the judgment of the lower court. and i ve been very mindful, especially as a trial judge, of the standards of review. when i was prepping lawyers for oral argument before appellate courts, i would often say please don t quarrel with