Adam Steinman argues for replacing the various standards of review with a unified one, with reversal proper only if (1) there’s an error of law or (2) the appellate court is more likely to be correct.
February 17, 2021
Standards of review are a key part of appellate litigation—you cannot know whether the district court erred without knowing how the court of appeals will look at the district court’s decision. And a variety of standards of review exist, from de novo review for legal issues to clear-error review for factual issues to abuse-of-discretion review for a variety of district court decisions.
In a new article—Rethinking Standards of Appellate Review—Adam Steinman challenges the long-standing practice of assigning a standard of review to a particular issue. He would replace these various standards with a single one: the court of appeals can reverse only if it is more likely to reach the correct decision than the trial court. Steinman argues that this unified standard, coupled with the rule that errors of law always receive de novo review, would further both the error-correction and law-development purposes of appellate courts.
The abstract is below, and the article is available on SSRN. I read an earlier draft of this article and can highly recommend it—it’s very thought provoking.
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.
Adam Steinman, Rethinking Standards of Appellate Review, 96 Indiana Law Journal 1 (2020), available at SSRN.