William & Mary Law Review


Kenji Yoshino


This Article explores the question of how much appellate deference is due to “legislative” facts, or broad social facts about the world, established by the district courts. While it is axiomatic that “adjudicative” facts—which are the “whodunit” facts specific to a case—receive clear error deference on appeal, the Supreme Court has yet to address the degree of deference due to legislative facts. While the dominant view among appellate courts is that legislative facts should only receive de novo review, the practice of the courts has in actuality been much more fitful and inconsistent. The standard may be unsettled in part because the two extant alternatives—clear error and de novo review—both raise serious concerns. This Article proposes an intermediate “significant weight” standard, in which the deference accorded to a finding below corresponds to the degree of adversarial testing to which the finding was subjected.


This Article arose out of the 2014 James Goold Cutler Lecture delivered at William & Mary Law School.

Publication Information

58 William & Mary Law Review 251-283 (2016)

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