Rethinking Standards of Appellate Review
50 Pages Posted: 6 Feb 2021
Date Written: December 17, 2020
Every appellate decision typically begins with the standard of appellate review. The Supreme Court has shown considerable interest in selecting the standard of appellate review for particular issues, frequently granting certiorari in order to decide whether de novo or deferential review governs certain trial court rulings. This Article critiques the Court's framework for making this choice and questions the desirability of assigning distinct standards of appellate review on an issue-by-issue basis. Rather, the core functions of appellate courts are better served by a single template for review that dispenses with the recurring uncertainty over which standard governs which trial court decisions.
The error-correction role of appellate courts would be optimized by a unified inquiry into whether the appellate court’s likelihood of reaching the correct decision is higher than the trial court's. This new standard would consider both general institutional advantages (such as the trial court's superior ability to assess witness credibility) and case-specific indicia of correctness (such as the appellate court's level of confidence or particular strengths or weaknesses in the trial court's analysis). This inquiry can be joined with the Supreme Court's long-standing view that appellate courts may always correct legal errors de novo, regardless of the broader standard of review that applies to a particular issue. That power to correct legal errors, combined with the ability to identify conditions that increase or decrease the likelihood that a court's decision on a particular issue is correct, would enhance the law-clarification function of appellate decisions.
Accordingly, this Article argues for a uniform approach to appellate review that permits reversal only when (a) the trial court committed an error of law, or (b) the appellate court's likelihood of reaching the correct decision is higher than the trial court's. These two components eliminate the need to track particular issues for either de novo or deferential review at the front end, allowing appellate courts to discard the Supreme Court's problematic doctrine on standard-of-review selection while still serving the systemic goals of error correction and law clarification.
Keywords: appeals, appellate procedure, civil procedure, federal courts, standards of review
JEL Classification: K00, K10, K40, K41
Suggested Citation: Suggested Citation