Stepping into the Same River Twice: Rapidly Changing Facts and the Appellate Process

123 Pages Posted: 8 Sep 1999 Last revised: 15 Jul 2023

Abstract

Commentators and judges have frequently noted the existence of rapid and continual changes in areas like the Internet and the computer industry, but they have largely ignored the ramifications of these changes for the appellate process. How should a court treat a precedent providing prospective relief that relies on set of facts that are now outdated? Even more provocatively, how should an appellate court respond if relevant facts in a given case have changed during the appellate process -- that is, after the district court makes its findings but before the final appellate court issues its ruling? The article addresses both questions but focuses on the possibility of factual change during the appellate process. After laying out examples of such factual change, I argue that an appellate court has three basic options, each of which has drawbacks: remand the case for further fact-finding (and run the risk of an infinite loop if the facts change again after the new findings), decide the case based on the facts as found (and thus produce an opinion that may be outdated the day it issued), or update the facts on its own (and thus expend valuable appellate resources). We could mitigate the problem with a more streamlined system of appellate review; short of that, however, the most attractive option is probably the appellate updating of facts. The larger issue, though, is that rapidly changing facts put pressure not only on the appellate process but also on our notion of precedent. In areas undergoing transformations, precedents have shorter lives and less importance.

Keywords: Appellate, Appeals, Circuit, Altered, Stale, Outdated, Facts, Factual, Rapidly Changing, Continually Changing, Updating, Revising, Precedent, Stare Decisis, Internet

Suggested Citation

Benjamin, Stuart Minor, Stepping into the Same River Twice: Rapidly Changing Facts and the Appellate Process. Texas Law Review, Vol. 78, No. 2, December 1999, Available at SSRN: https://ssrn.com/abstract=178389

Stuart Minor Benjamin (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-7275 (Phone)
919-613-7231 (Fax)

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