There is great confusion among scholars and courts about whether and when appellate courts may, or must, defer to trial courts' findings of social fact in constitutional rights cases. The Supreme Court has never directly decided the question and indeed has addressed it only once, in passing. A common assumption, promoted by scholars and adopted as binding by some circuits, is that the deferential, "clearly erroneous" standard of Federal Rule of Civil Procedure 52(a)(6) does not apply to social facts. This Article challenges that assumption. There is nothing in the text of the rule that supports this conclusion. Moreover, except in certain readily identifiable circumstances, it makes sense for appellate courts to defer to trial courts' findings of social fact. Federal bench trials are better suited than the appellate process to vetting social facts when laws are challenged as violating constitutional rights. When key social facts are missing from the trial record, a remand for further factfinding at the trial level will often be workable and appropriate. Since a court's findings of social fact can determine whether constitutional rights claims succeed or fail, it is crucial to achieve a clearer understanding of the roles and respective authority of appellate and trial courts in factfinding in constitutional rights cases. This Article sorts out the tangle of rules and precedents concerning appellate review of trial court factfinding in the constitutional rights context. It then proposes a framework for assessing whether and when appellate courts should defer to trial courts' findings of social fact in constitutional rights cases.
Professor Wendy Greene highlights the continued importance of analyzing interracial relationships in the framework of the law in her review of Professor Angela Onwuachi-Willig's book, According to Our Hearts: Rhinelander v. Rhinelander and the Law of the Multiracial Family. Professor Greene comments that given the Supreme Court's continued interest in cases involving marital and racial equality, a study of the legal history of interracial marriage in America, like that done by Professor Onwuachi-Willig, is both relevant and essential for understanding fundamental rights jurisprudence.
In her response to Innocence Interrupted: Reconstructing Fatherhood in the Shadow of Child Molestation Law (101 Calif. L. Rev. 609), Professor Melissa Murray compares contemporary criminal child molestation statutes to Jeremy Bentham's Panopticon, the all-observing watchtower that normalizes expectations of constant state surveillance. Arguing that the enforcement of child-molestation laws creates a near-constant sense of surveillance and encourages male and female caregivers to regulate their own behavior by adopting the identities favored by the state, Professor Murray illustrates how such well-meaning statutes may, in fact, perpetuate outdated gender stereotypes.
In his review of Professor Angela Onwuachi-Willig's book, According to Our Hearts: Rhinelander v. Rhinelander and the Law of the Multiracial Family, Professor Holning Lau extends Professor Onwuachi-Willig's analysis of how external support is instrumental to the success of relationships beyond multiracial couples. Arguing that ecological factors should play a larger role in policy discussions about marital relations, Professor Lau examines the debates surrounding same-sex marriage and the Healthy Marriage Initiative and concludes that policymakers should more carefully consider how exogenous circumstances affect the success of intimate relationships.
NEWS & EVENTS
November 18, 2013All in the Family: Interracial Intimacy, Racial Fictions, and the Law
October 17, 2013Panopti-Moms
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