The Supreme Court has failed to clarify this important procedural exception to the clear error standard. More than this, the Court has failed to explain why it refuses to apply independent judgment to all constitutional facts. The results of the differential treatment of these two legal concepts are: 1) Rule 52, and the Supreme Court’s approach to its constitutional fact exception is another type of denial of structural due process, preventing the legal norming of intentional discrimination jurisprudence; 2) institutional interests of doctrinal coherence and decisional accuracy are minimized in favor of reducing direct costs to the judicial system; 3) whether working inside or outside the intentionalist framework of discrimination, it makes sense to apply the independent appellate judgment standard to intentional discrimination findings, and; 4) the persistent application of Rule 52’s clear error standard to findings of intentional discrimination is yet another example of the Supreme Court’s narrowed approach to Equal Protection violations.
Drug Panics in The Twenty-First Century: Ecstasy, Prescription Drugs, And The Reframing Of The War On Drugs, 6 ALB. GOV'T L. REV. 397