Wednesday, January 16, 2013
During the Spring semester, Legal Writing faculty often find the need to help students understand standard of review. Amanda Peters has writing a helpful article on the subject: “The Meaning, Measure, and Misuse of Standard of Review,” 13 Lewis & Clark Law Review 233 (2009). Of particular value are the brief discussions of the four most common standards of review: abuse of discretion, clearly erroneous, substantial evidence and de novo. Here is the abstract:
Standards of review should be the appellate court’s first consideration when it reviews the trial court decision on appeal. Yet, so often it is ignored or misused. This article seeks to explore the history of modern-day standards of review and the policy reasons for their creation. It uses empirical data collected from two sample jurisdictions, California and Texas, to identify ways that courts ignore, confuse, and misuse standards of review. The purpose of this article is to illustrate how standards of review are supposed to work in theory, demonstrate how they are often abused in practice, and encourage judges and appellate practitioners to recognize and confront problems that arise with the use of standards of review.