Changing Standards of Review

Abstract

In order to test whether standards of review matter, we would ideally evaluate how courts review the same cases under different standards of review. We can’t do this in practice, but there are examples in which legislative and judicial decisions have changed standard of review for particular kinds of cases. By comparing reversal rates from cases that immediately precede a change against reversal rates in the same court from cases that post-date it, we can come as close as possible to the ideal experiment – testing the same case under two different standards. An initial look at one of these circumstances of changing standards of review supports the proposition that merely changing the standard does not change reversal rates. This initial examination, however, suggests a hypothesis about standards of review that may reconcile the tension between those who are convinced that they matter and those who think they don’t. In particular, the article suggests that standards of review are unlikely to drive changes in reversal rates because they reflect a deeper understanding about the role of various institutions within the legal system. Unless those understandings change, reversal rates are unlikely to change even if the language of the standard of review changes. This insight demonstrates ways that the standard of review provides an important signal about underlying preconceptions about the role of the appellate court in the system, and suggests that legislatures and practitioners seeking to influence appellate courts should focus more of their attention on changing those understandings than on merely changing the standard of review itself.

Keywords: judicial decisionmaking; standards of review; appellate review; judicial process; legislatures