Nicki Herbert


In the context of state and local affirmative action programs in public contracting, federal circuit courts have split on the appropriate standard of appellate review of a district court's finding of a "strong basis in evidence, " a finding necessary to uphold the constitutionality of such programs. Using as a backdrop the premise that Rule 52(a) establishes a critical procedural requirement to which federal circuit courts should consistently adhere, the author discusses the history of the "strong basis in evidence" standard, appellate review in the federal court system generally, and the analysis used by federal appellate courts to resolve the issue. The author recommends adhering to the policy underpinnings of Rule 52(a) to analyze the appropriate appellate treatment of this finding, and, based on the implications of treating the "strong basis in evidence" finding as a finding of fact versus a question of law, concludes that appellate courts should review the "strong basis in evidence "finding under the clearly erroneous standard of Rule 52(a).

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