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Allocating Adjudicative Decision Making Authority Between the Trial and Appellate Levels: A Unified View of the Scope of Review, the Judge/Jury Question, and Procedural Discretion

NCJ Number
107719
Journal
North Carolina Law Review Volume: 64 Issue: 5 Dated: (June 1986) Pages: 993-1047
Author(s)
M B Louis
Date Published
1986
Length
55 pages
Annotation
Decisional authority traditionally is divided between trial and appellate level decisionmakers largely through a distinction between fact and law: trial judges, juries, and agencies take primary responsibility for questions of facts; appellate courts take primary responsibility for questions of law.
Abstract
It is over the application of law to historical facts, or ultimate facts, that the two levels vie for decisional power. A major area of difficulty in determining the scope of review has centered on ultimate facts, particularly those going to the merits of a particular case. Generally, questions of ultimate fact are classified as questions of fact and are reviewed deferentially on appeal, marking a shift in power to the trial level. This shift in power and blurring of traditional distinctions appears to be the result of a litigation explosion that has necessitated deference to most trial level determinations having a substantial factual component. While appellate courts could use their law-making authority to offset the loss in adjudicative authority, they have failed to do so. They have, however, surrendered none of their traditional authority over trial level procedural and evidentiary determinations. 389 footnotes. (Author abstract modified)

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