As all appellate lawyers know, the general rule is that an appellate court reviews a trial court's decisions on questions of fact deferentially, while questions of law are reviewed de novo (i.e., from scratch, we don't care what the trial judge thought). What that means, as a practical matter, is that if you think the trial judge got a factual question wrong ("addressing questions of who did what, when or where, how or why," as the opinion noted in this post says), you usually still have to advise a paying client that he would be throwing good money after bad to appeal it. If it's a question of "pure" law, such as what legal standard applies, you have a much better shot at it.
But what about "mixed questions of law and fact," making a fact-intense inquiry based a generally worded standard? The answer is ... [drum roll] ... it depends. This question used to come up quite a bit in habeas corpus cases until AEDPA* rescued us and applied a deferential standard across the board. It still comes up in appeals.
One of the cases decided by the Supreme Court today is U.S. Bank v. Village at Lakeridge, No. 15-1509. It's bankruptcy case. Eyeballs roll. Boring. No need to read. Right?
Not so fast. On page 6 we find a citation to Thompson v. Keohane, 516 U. S. 99, 111 (1995), one of the last "mixed question" habeas corpus cases we did (and regrettably lost) before AEDPA.
But what about "mixed questions of law and fact," making a fact-intense inquiry based a generally worded standard? The answer is ... [drum roll] ... it depends. This question used to come up quite a bit in habeas corpus cases until AEDPA* rescued us and applied a deferential standard across the board. It still comes up in appeals.
One of the cases decided by the Supreme Court today is U.S. Bank v. Village at Lakeridge, No. 15-1509. It's bankruptcy case. Eyeballs roll. Boring. No need to read. Right?
Not so fast. On page 6 we find a citation to Thompson v. Keohane, 516 U. S. 99, 111 (1995), one of the last "mixed question" habeas corpus cases we did (and regrettably lost) before AEDPA.
On the question of the standard of review for mixed questions, Justice Kagan explains in the opinion of the Court:
That's perfectly clear, isn't it? No? Sorry.
But if you have a question involving the standard of review for a mixed question, you might want to check out this case. It is a good description of this area of the law.
And for comic relief at the expense of two of the people involved, check footnote 2.
* The Antiterrorism and Effective Death Penalty Act of 1996.
Update: Ronald Mann at SCOTUSblog predicts "that the short, succinct and lucid analysis of mixed questions of law and fact will end up being quoted frequently in future contexts far removed from the bankruptcy dispute resolved today." That might sound like we have opposite views about this opinion, but we don't. Justice Kagan's discussion may well be as lucid as the state of the law allows, but the state of the law is far from lucid. I have edited the post above to clarify that distinction a bit.
Mixed questions are not all alike. As U. S. Bank suggests, some require courts to expound on the law, particularly by amplifying or elaborating on a broad legal standard. When that is so-- when applying the law involves developing auxiliary legal principles of use in other cases--appellate courts should typically review a decision de novo. See Salve Regina College v. Russell, 499 U. S. 225, 231-233 (1991) (discussing appellate courts' "institutional advantages" in giving legal guidance). But as Lakeridge replies, other mixed questions immerse courts in case-specific factual issues--compelling them to marshal and weigh evidence, make credibility judgments, and otherwise address what we have (emphatically if a tad redundantly) called "multifarious, fleeting, special, narrow facts that utterly resist generalization." Pierce v. Underwood, 487 U. S. 552, 561- 562 (1988) (internal quotation marks omitted). And when that is so, appellate courts should usually review a decision with deference. See Anderson v. Bessemer City, 470 U. S. 564, 574-576 (1985) (discussing trial courts' "superiority" in resolving such issues).4 In short, the standard of review for a mixed question all depends--on whether answering it entails primarily legal or factual work.
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4 Usually but not always: In the constitutional realm, for example, the calculus changes. There, we have often held that the role of appellate courts "in marking out the limits of [a] standard through the process of case-by-case adjudication" favors de novo review even when answering a mixed question primarily involves plunging into a factual record. Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 503 (1984); see Ornelas v. United States, 517 U. S. 690, 697 (1996) (reasonable suspicion and probable cause under the Fourth Amendment); Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 567 (1995) (expression under the First Amendment); Miller v. Fenton, 474 U. S. 104, 115-116 (1985) (voluntariness of confession under the Fourteenth Amendment's Due Process Clause).
That's perfectly clear, isn't it? No? Sorry.
But if you have a question involving the standard of review for a mixed question, you might want to check out this case. It is a good description of this area of the law.
And for comic relief at the expense of two of the people involved, check footnote 2.
* The Antiterrorism and Effective Death Penalty Act of 1996.
Update: Ronald Mann at SCOTUSblog predicts "that the short, succinct and lucid analysis of mixed questions of law and fact will end up being quoted frequently in future contexts far removed from the bankruptcy dispute resolved today." That might sound like we have opposite views about this opinion, but we don't. Justice Kagan's discussion may well be as lucid as the state of the law allows, but the state of the law is far from lucid. I have edited the post above to clarify that distinction a bit.
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