Universal De Novo Review

59 Pages Posted: 3 Jun 2008 Last revised: 22 May 2009

Chad M. Oldfather

Marquette University - Law School

Date Written: February 2009

Abstract

This article takes up the question of why appellate courts always review questions of law pursuant to the de novo standard of review. Put another way, it examines the familiar idea that appellate courts owe no deference to the legal rulings of trial judges. They must instead engage in what I refer to as universal de novo review - a practice pursuant to which appellate courts faced with legal questions always enjoy the authority to engage in plenary review, and never have the responsibility (or even the option) to defer to their trial-level counterparts. Despite - or perhaps because of - its familiarity and prevalence, universal de novo review has gone relatively unexamined by legal scholars. The article looks to fulfill that gap by undertaking a comprehensive analysis of its possible justifications. I also consider the appropriateness of a regime incorporating deference - something of a Chevron doctrine for trial courts - and outline some of the factors that should guide the exercise of such deference.

Keywords: de novo, standards of review, deference, appellate, judges, courts, indeterminacy,

JEL Classification: K4, K40, K41

Suggested Citation

Oldfather, Chad M., Universal De Novo Review (February 2009). George Washington Law Review, Vol. 77, p. 308, 2009; Marquette Law School Legal Studies Paper No. 08-02. Available at SSRN: https://ssrn.com/abstract=1139864

Chad M. Oldfather (Contact Author)

Marquette University - Law School ( email )

Eckstein Hall
P.O. Box 1881
Milwaukee, WI 53201
United States
414.288.8031 (Phone)

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