Thursday, August 21, 2014 10:45:28 AM
If the Supreme Court decides that the clear error standard was incorrect, it may "reverse and remand for proceedings consistent with this decision." I believe that is the usual phrase.
In such a case, I have to believe that there would be briefs filed, each side arguing (as they have done in the cert briefings) that their side wins under the clear error standard. I think at that point, the appellate court would decide the case based on the trial court record, considering the briefs.
When I get a chance, I will try and look at actual cases and see if the process conforms to this.
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