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
• Publication Format: Article
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America

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)