Law, Fact, and Appellate Review

For centuries, courts have been called upon to distinguish between law and fact. That distinction played a key role in recent Supreme Court decisions on two critical components of appellate review. Dupree v. Younger considered an important question regarding what a party must do at trial to preserve an issue for appellate review. And Google LLC v. Oracle America, Inc. addressed how to select and apply the standard of appellate review--specifically, whether and how the appellate court must show deference to particular decisions made at the trial level. <br><br>Both decisions were partially right. Dupree correctly focused on whether&nbsp;certain early rulings are unreviewable on appeal because they are "overcome"&nbsp;by proceedings at trial. Google properly recognized that an appellate court&nbsp;must defer to the jury as to underlying findings jurors may have made in&nbsp;reaching the ultimate verdict. But both decisions went awry in concluding&nbsp;that the appellate court could further increase its review power simply by&nbsp;characterizing certain issues as "legal" rather than "factual." A close analysis&nbsp;of the Dupree and Google decisions themselves--and a sound understanding&nbsp;of the structure of appellate decision-making--reveals that the labels of law&nbsp;and fact are ill-suited to assessing questions of issue preservation and&nbsp;appellate deference.<br><br>This Article details those shortcomings and argues for a more coherent&nbsp;approach to both questions. Rather than characterizing the "issue" being&nbsp;appealed, courts should focus on the decisional "outcome" for that issue.&nbsp;Regarding issue preservation, courts should inquire whether the outcome of a&nbsp;pretrial ruling had conclusively resolved an issue such that there is no need&nbsp;for a further decision on that issue at trial. If so, that ruling may be appealed&nbsp;regardless of whether the party took additional steps at trial to reassert its&nbsp;position. With respect to appellate deference, what matters is the analytical&nbsp;outcome reached by the appellate court in conducting its review. The appellate&nbsp;court can always articulate generalizable principles independently when those&nbsp;principles are part of its decisional analysis. But where it would merely impose&nbsp;a different ultimate result than the trial judge or jury, reversal should require&nbsp;heightened justification.