Thursday, February 11, 2021
I wanted to share a link to my recent article, Rethinking Standards of Appellate Review, 96 Ind. L.J. 1 (2020), which is now in print and available on SSRN. The piece is an effort to make sense of a topic that has been an area of frequent interest for the Supreme Court: For any given issue that a trial court might decide, should the appellate court review the lower court’s ruling de novo? Or should it review the ruling deferentially, say, for clear error or abuse of discretion? (In recent years the Court has granted cert to choose the standard of appellate review for a wide array of issues, ranging from a child’s habitual residence under the Hague Convention, to a creditor’s insider status under federal bankruptcy law, to whether to enforce an EEOC subpoena, to whether to award attorney fees in a patent case.)
The article digs into the how and why of the Court’s framework for making this choice, and I ultimately argue that we should scrap the enterprise of assigning distinct standards of appellate review on an issue-by-issue basis. It’s not because the concerns that animate the Court’s approach are unimportant. Rather, it’s because the purposes of appellate review—principally, error correction and law clarification—are better served by a uniform template for review that informs the substantive merits of every appellate decision. As I put it in the abstract:
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.
I touch on other issues as well, including the expenditure of appellate court energy, appellate review of constitutional issues and so-called “legislative facts,” the possibility of asymmetric appellate review, and what even constitutes a “legal error” anyway? This was a fun piece to write (notwithstanding the math in it), and I had a great experience working with the editors in Bloomington during a very unusual time. Thanks again!