אלע נייעס וועגן דע סטעי

הנה קטע ממה שמצאתי שעורך דין שהיה סגן בבית הדין לערעורים בניו יארק ולפי הידע שלו ממש אין אפשרות שבי"ד לערעור ידחו מה שהשופט קיבל לאמתף ממה ש"מצא".  

קוראים את זה באנגלית "פיינדינג"ף וכמעט שלא נמצא שהם מקבלים ערעור על קביעתו של שופט כעובדה אמיתית [שר' ברל לא נדחה] אף במקום שנראה כטעות, אם לא כטעות בולטת לעין כל, אז הם מקבלים ערעור וזה לא קורה ב99.99 אחוזים של דיונים. 

עם כל הטענות שלך לרוזנואסר לא נראה שהם ידחו מה שהוא קבע לאמת או שקר. 

ומי שקורא מה שכתב רוזנואסר על החוק לחזק פסיקתו (שאסור לעמותה שיהיה אדם אחד להשתלט על נכסיה זה דבר מקובל כחוק פשוט ומפורסם בארה"ב) הוא חזק חזק מאוד. 

 



הנה הקטע


This post includes some thoughts posted in a previous message, but also some new ones. As a former court of appeals law clerk, I have actually participated in the process of deciding whether to overturn findings of fact and deciding when to do so, which I hope makes me qualified to comment even though I do not share the in-depth knowledge of the opinion many of you have.

While findings of fact are 99.9% unappealable, in practice they are 100% unappealable in 90% of the cases, and considerably more appealable in the remaining 10%. The 90% are cases in which the law is well established and the findings of fact, whether correct or incorrect, are based on established law and precedent.

In some courts, a large number of cases are not even argued before the appeals court or are decided based on an "unpublished" opinion with no precedential value. These cases get considerably less attention than others, and since no one can fault the appeals court for upholding findings of fact, in these cases they always do. These are cases in which the appellate court sees no obvious problems with the result, and most do not much care how that result was reached since they have plenty of more problematic or controversial results to spend their time on.

Where the law is less clear, and where the distinction between a finding of "fact" and a finding of "law" is very difficult (true in the case of Microsoft being a monopoly, not true in the case where judge decides on the basis of conflicting evidence that X, not Y, fired the gun), appellate judges are much more inclined to overturn a finding of fact. Appellate courts are also more likely to reverse a finding of fact in a high profile case like this than in a smaller and less publicized case. The standard is "clearly erroneous" for findings of fact, as opposed to "de novo" for findings of law, but it's not that hard to find something clearly erroneous if the question is important.

Antitrust law is not like other areas of the law in which legality is decided based on objective criteria and the judge is merely resolving ambiguities created by conflicting testimony, missing or unclear evidence, etc. Such objective criteria might be: did the defendant know he was carrying drugs, or was he truly convinced he was carrying baby powder? (Mistake of fact is a defense to a crime). Were the defendants sexual advances unwelcome, or did the plaintiff's emails demonstrate an interest in receiving them? Was the company insolvent at the time that the defendant convinced it to give him $10 million for his lemonade stand, or did it become insolvent later? (If the co. was insolvent, it was probably a fraudulent conveyance and the D must give the $ back.) These are truly findings of FACT. What actually HAPPENED.

In contrast, antitrust law is based entirely on economics. As anyone who has studied economics knows, economists can manipulate facts to reach wildly different conclusions. Yet antitrust law asks as basic questions of "fact" the very same questions an economics professor might discuss in a journal article--with profs from other schools of thought taking entirely different positions. The Microsoft case certainly involves some findings of fact, but also many findings that require analyzing the interaction of fact with law. Those findings will receive very careful scrutiny by the appeals court.

Happy posting,

K. Manfield