The Threshold of a Final Appeal: Factual Disputes and Violations of Law

Abstract

This volume asks whether an unfavorable finding of fact can be disputed again before the court that reviews only questions of law. A final appeal is not a repetition of the fact-finding instance. Rather than dressing up dissatisfaction with the facts as an assertion of a violation of law, the appellant must clarify the relationship between the record and the legal rules that bind the lower court's determination. The path to relief opens where a violation of law that affected the judgment, or a ground for final appeal under the relevant special act, is specified and lawfully submitted, and closes where there is only a demand for a fresh evaluation of lawfully established facts and no ground of violation of law to be heard. The six sections address, in turn, the violations of law that a final appeal examines, defects in the composition of the court, challenges without a statement of grounds, the limits of the hearing, the conditions for exclusive authority over facts, and the different threshold for small claims cases. The strongest counterargument is as follows. Where a finding of fact is wrong, the restriction to questions of law leaves a substantive error in place. Reconstruction of the opposing party's legal theory and techniques of written persuasion are not addressed in this volume.