Law students begin to encounter the concept of a "standard of review" earlier in the first year. That's not surprising. First-year law students read appellate cases, and every appellate decision explicitly or implicitly includes a standard of appellate review--a rule that defines the relationship between the appellate and trial court. For example, the standard of appellate review on questions of law is "de novo."
Now, you may be wondering why "standards of review" are being discussed in the Legal Theory Lexicon. After all, this whole topic sounds like doctrine, not theory. And that's right--standards of review are "doctrine," but that doesn't mean that they aren't also of theoretical interest. In this entry in the Legal Theory Lexicon series, we will take a look at standards of review from a theoretical perspective. We'll try to figure out whether the idea of a deferential standard of review makes sense, and if it does, how that idea might be explained and defended. We'll also take a whirlwind tour through a variety of contexts in which the idea of a "standard of review" plays a role. Here goes!
As always, the Legal Theory Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory. All the usual caveats apply, this is a very basic introduction that emphasizes theoretical issues--it is not intended as a review of the various legal doctrines that are discussed.
Is Deferential Review Possible?
Let's start with the hard stuff. Many standards of review are described as "deferential." The abuse of discretion standard is supposedly "deferential," as is the "rational basis" standard and the "reasonable jury" standard. Appellate courts are supposed to defer to the management decisions made by trial courts. Courts are supposed to defer to the legislative decisions made by Congress. Judges are supposed to defer to the factual judgments made by juries.
Superficially, this all looks quite straightforward. After all, the idea of "deference" is familiar from ordinary language and life: for example, I might defer to a friend's judgment about wine or a colleague's judgments about golf--they know more than I do about those topics. But in the context of law, it can get to be tricky. To tease out the difficulty, let's distinguish between two different notions of deference, "deference to authority" and "epistemic deference."
By "deference to authority," I mean to refer to the practice of deciding that someone else's judgments or beliefs should substitute for your own. If defer to my friend's choice of wine, I am simply letting her choose, giving her the authority to make the decision. On the other hand, I might ask my friends advice about wine. If she is more knowledgeable than am I, I might give her advice substantial weight in making my decision. "I've never tried the Screaming Eagle Cabernet, but Dennis has and I have found his evaluations to be reliable in the past. If he says it is overrated, then it probably is." I am deferring to Dennis's experience and reliability in forming my own beliefs--because this form of deference is about knowledge, we can call it "epistemic deference."
OK, OK, but what did that all mean? Here is the possibility that I would like to put on the table: it might be the case that all deference is at bottom either "deference to authority" or "epistemic deference," and hence that there is nothing "in between." If that's right, it will have implications for the idea of a deferential "standard of review." In particular, if this were true, then we might reach the conclusion that if there is any meaningful review at all, it must be non-deferential de novo review. Let me be clear: I am not going to argue for that conclusion. Instead, I am going to pose a challenge or offer a puzzle--I won't be reaching any conclusions, one way or the other.
Here's what we are going to do. I'm going to give a brief and sweeping outline of various legal contexts in which the notion of a standard of review plays a role. Then after we've looked at these contexts we'll return tot he deference problem.
The phrase "standard of review" is used a variety of legal contexts. Let's take a look at some of them.
- Judicial Review of Jury Decisions: Juries make decisions, but judges are required to review them in a variety of procedural contexts--motions for judgment as a matter of law (or judgment non obstante verdictum), motions for a new trial on the grounds that a jury's decision was contrary to the weight of the evidence, and so forth. In this context, the conventional wisdom is that judge's must "defer" to the jury and uphold any decision that could have been reached by a "reasonable jury."
Appellate Review of Trial Court Decisions: This is the most familiar context for thinking about "standards of review." The conventional wisdom is that there are three. The de novo standard applies to trial court decisions of law: appellate court's are not required to defer to these and may review them de novo (as if they were "new"). The clearly erroneousstandard applies to findings of fact by a trial judge. This is supposed to be a deferential standard; appellate judges are supposed to review factual findings for error, but to do thisdeferentially. The abuse of discretion standard applies to discretionary or management decisions by trial court judges. Again, this is supposed to be a deferential standard. Even if the appellate court would have made the decision differently, it should not reverse unless that trial court's decision was an "abuse of discretion," something beyond "mere error."
Judicial Review of Legislation: Yet another context is provided by judicial review of legislation, usually for constitutionality. This is a huge topic, but we can simplify by focusing on two standards, both derived from doctrine developed in connection with the equal protection clause of the United States Constitution. The "rational basis" standard is intended to be highly deferential--a statute subject to this standard should be upheld unless no rational legislature pursuing a legitimate objective could have believed that the statute would advance the objective, even very imperfectly. The "strict scrutiny" standard, on the other hand, is not deferential at all. In fact, the saying goes "strict in theory, fatal in fact." In fact, the "strict scrutiny" standard is even "antideferential" rather than merely "neutral" as is the de novo standard of appellate review.
- Judicial Review of Administrative Agencies: The Administrative Procedures Act requires federal courts to uphold the actions of federal agencies if they are supported by "substantial evidence." The famous "Chevron doctrine" requires federal courts to defer to an agencies interpretation of a statute, so long as that interpretation is "reasonable." The Chevron doctrine seems to imply that administrative agencies should receive more deference on questions of law than trial courts receive under the de novo standard of appellate review.
The Deference Question Revisited
We are now in a position to think again about the question whether "deferential review" is possible and, if it is, what deference really means. Some standards of review are simply not deferential at all--de novo appellate review of questions of law, for example. Other standards of review might be interpreted as involving "deference to authority." Under the Chevron doctrine, for example, we might say that administrative agencies have authority to interpret the statutes that govern them--although that authority may have "outer bounds" that are policed by the courts. Yet other standards might be explained as "epistemic deference." For example, the clearly erroneous rule may simply require appellate courts to give "epistemic deference" to the fact-finding advantages of trial court judges.
On the other hand, it might be argued that some standards of review seek a middle ground between "deference to authority" and "epistemic deference." Perhaps, a jury can be reasonable, even though the trial judge knows the jury was wrong--if so, then the "reasonable jury" standard is not a matter of epistemic deference. But trial judges are not required to defer entirely to the authority of the jury--the judge retains the power to set aside verdicts contrary to the weight of the evidence. The hard question that remains is "what exactly is this "middle ground?" How can you believe a jury is wrong but reasonable? How can you decide that a given statute only serves the narrow economic advantage of a special interest group but also find that the legislature had a rational basis?
It is tempting to think of the standards of review in terms of probabilities or degrees of confidence. So we might way that complete deference requires that a decision be upheld even if the chance that one of its predicates is correct is zero (0.0). A nondeferential standard permits the reviewing entity to reverse a decision so long as the probability that it is correct is less than fifty-fifty (0.5). This leaves a middle ground--e.g., a standard that would uphold decisions unless there was a .25 chance they were correct (or any other real number great than 0.0 and less than 0.5). It's worth thinking about this possibility, but for reasons I won't explain here, I am inclined to think that this model of appellate review cannot, in the end, be made to work.
Understanding the idea of a standard of review is fundamental to understanding legal doctrine. And to really understand standards of review, you need to grasp the theory that grounds them. The aim of this post has been to give you some basic ideas from which your own reflections can begin.
Related Lexicon Entries
- Legal Theory Lexicon 026: Rules, Standards, and Principles
- Legal Theory Lexicon 043: Formalism and Instrumentalism
- Legal Theory Lexicon 063: Interpretation and Construction
- Amanda Peters, The Meaning, Measure, and Misuse of Standards of Review, 13 Lewis & Clark L. Rev. 233 (2009).
- Harry T. Edwards & Linda A. Elliott, Federal Courts - Standards of Review: Appellate Court Review of District Court Decisions and Agency Actions (Thomson West 2007).
- Paul R. Verkuil, An Outcomes Analysis of Scope of Review Standards, 68 William & Mary Law Review (2002).
- Joshua B. Fischman and Max M. Schanzenbach, Do Standards of Review Matter? The Case of Federal Criminal Sentencing, Journal of Legal Studies (forthcoming).
- Steven A. Childress & Martha S. Davis, Federal Standards of Review (4d ed. Lexis-Nexis 2010)
(Last modified on July 15, 2018.)