Bryan L Adamson (Seattle University School of Law) has posted Federal Rule of Civil Procedure 52(A) as an Ideological Weapon? on SSRN. Here is the abstract:
In this article, the author explores Federal Rule of Civil Procedure 52(a) and standard of review choice to determine whether appellate judges can exploit its terms to pursue ideological goals. The author examines the operative terms of Rule 52(a), viz., findings of fact, clear error, and documentary evidence, and concludes that they are so malleable as to give appellate judges wide discretion in deciding whether clear error, de novo, or some other standard of review is to be applied. The article then goes on to identify fact typologies appellate courts invoke (historical, ultimate, constitutional, legislative, sociological, scientific, political, economic, jurisdictional), some which also enables them to circumvent Rule 52(a) and engage in de novo review of a trial court's factual findings The article concludes that standard of review choices can serve as a prism through which to view a judge's ideological predisposition, especially when those choices are made in an undisciplined, unprincipled manner. The author argues that appellate courts' treatment of Rule 52(a) and fact typology can impair decisional legitimacy, administrative efficiency, and comity between the trial and appellate courts. As Rule 52(a)'s malleable character and fact typology serve important jurisprudential functions, the author makes several recommendations to clarify decisional rules as they apply to standard of review, and to mitigate unwarranted perception of ideological bias in making judgments about the applicable standard of review.