Posted by Orin Kerr:
Standards of Review and Institutional Roles -- Some Thoughts on Chad
Oldfather's "Universal De Novo Review":
http://volokh.com/archives/archive_2009_05_10-2009_05_16.shtml#1242408458
[1]Chad Oldfather has a new article, [2]Universal De Novo Review, just
out in the George Washington Law Review, asking why appellate courts
always review legal issues de novo without deference to the trial
court. Chad runs through some of the common explanations and find them
wanting, and suggests that perhaps there should be exceptions to the
general rule where appellate courts defer to trial court legal
rulings.
I found it in an interesting and thought-provoking article, and I
wanted to blog a few thoughts about it. Some of my take matches
Chad's, and some is different: I mean this more as a general take on
these important issues than a specific agreement or disagreement with
Chad's views.
Let's start with the general function of standards of review. In my
view, the key to understanding standards of review is that they
distribute power among institutions. A standard of review defines the
power distribution between the reviewing institution and the
institution under review. A deferential standard of review gives power
to the institution reviewed; a de novo standard of review retains
power for the reviewer.
Standards of review vary because different institutions serve
different functions. Different institutions -- trial courts, agencies,
appellate courts -- serve different roles, and the standards of review
distribute power to enable them to serve those roles effectively.
When understood in that way, I think most standards of review begin
to make sense. Consider the kinds of trial court rulings that receive
deference by appellate courts. Trial courts are given deferential
review of case-specific types of determinations -- most obviously
factual determinations, and equally importantly, questions of trial
procedure such as evidentiary rulings that have no broader
significance beyond that particular case. Why give deference for these
issues? The reason is that structurally speaking, trial courts are
designed to make judgements that are primarily case-specific. As Judge
Sotomayor put it in her Duke comments, the focus is on the details of
that particular case, and decisions typically only apply to that
particular case.
The deferential standard of review enables that function. It gives
trial courts the power to do their job in individual cases. Granted,
appellate courts provide some check on that. But they act as a check
only when the trial court rulings are way off, such as when a factual
dinfing is clearly erroneous or an evidence ruling is an abuse of
discretion. Most of the power to decide case-by-case issues is given
to the district court, and the standard of review reflects that.
Now turn to the focus of Oldfather's article, the general rule that
appellate courts review trial court legal interpretations de novo. Why
is that? In my view, the reason is that structurally speaking,
appellate courts are primarily designed to settle questions that cut
across cases. From a structural standpoint, what matters is that there
is some body that settles the law -- some institution that announces
the rule or standard that others must follow.
De novo review of legal questions enables that function. It lets the
institutions that have the power to announce the binding law do so
unencumbered. If appellate courts deferred to trial court
determinations of law, you would either have a situation in which no
binding law is ever created (if stare decisis does not apply to the
upheld trial court legal reading) or else the first trial court to get
to an issue binds all others (if it is). Neither outcome would allow
appellate courts to fulfill their designed role as institution that
settles questions across cases.
The idea that standards of review enable institutional roles largely
explains the main exceptions to the usual rule of de novo review. For
example, Chevron deference in the case of judicial review of agency
interpretations of law is needed because modern administrative
agencies are designed to have substantive powers in a zone of
delegated discretion. They can't exercise that power effectively if
courts can second-guess every legal interpretation with de novo
review; more deferential review is needed for agencies to fulfill the
function they were designed to serve. Similarly, deferential federal
appellate review of district court interpretations of state law is
allowed because it isn't the role of a federal court to settle state
law. That's primarily a question for state courts, and deference to
the federal trial court interpretation limits federal court
intervention into the proper powers of state courts.
One issue on which Chad and I agree is that the "expertise"
rationale for standards of review isn't very illuminating. We can
certainly hope that the institution designed to wield a certain power
has or will develop expertise in executing it. Sometimes that is true,
sometimes it isn't. But the real issue is the distribution of power,
not whether we can in the abstract say a particular institution is
more "expert" than another.
References
1. http://204.11.208.101/cgi-bin/site.pl?10905&userID=3333
2. http://docs.law.gwu.edu/stdg/gwlr/issues/pdf/Oldfather-77-2.pdf
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