Standard of review
Encyclopedia
In LAW, the standard of review is the amount of deference
given by one court (or some other appellate tribunal) in reviewing a decision of a lower court or tribunal. A low standard of review means that the decision under review will be varied or overturned if the reviewing court considers there is any error at all in the lower court's decision. A high standard of review means that deference
is accorded to the decision under review, so that it will not be disturbed just because the reviewing court might have decided the matter differently; it will be varied only if the higher court considers the decision to have obvious error. The standard of review may be set by statute
, rule
or precedent
.
, there are three basic standards of review on appeal: "arbitrary and capricious," "clearly erroneous," and "de novo."
is seldom disturbed on appeal unless it is "arbitrary and capricious." The appellate courts will generally not review such findings unless those findings have no reasonable basis. For example, if a jury finds that a defendant used force during the commission of a crime, the appeals courts will not reverse this finding unless it has no reasonable basis in the testimony or other facts. Similarly, a government agency
's decision of an administrative law
is reviewed on the arbitrary and capricious standard. Arbitrary and capricious is a legal ruling wherein an appellate court
determines that a previous ruling is invalid because it was made on unreasonable grounds or without any proper consideration of circumstances.
Similarly, where a lower court has made a discretion
ary ruling (such as whether to allow a party claiming a hardship to file a brief after the deadline), that decision will be reviewed for abuse of discretion. It will not be reversed unless the decision is unreasonable.
In federal court
, if a party commits forfeiture
of error, e.g. by failing to raise a timely objection
, then on appeal, the burden of proof is on that party to show that plain error occurred. If the party did raise a timely objection that was overruled, then on appeal, the burden of proof is on the other party to show that the error was harmless error
. This approach is dictated by Federal Rule of Criminal Procedure 52, which holds, "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded ... Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." The appellate court has discretion as to whether or not to correct plain error. Usually the court will not correct it unless it led to a brazen miscarriage of justice
.
, review as if the appellate Court were considering the question for the first time. Legal decisions of a lower court on questions of law are reviewed using this standard. This is also called the "legal error" standard. It allows the appeals court to substitute its own judgment about whether the lower court correctly applied the law.
. For example, a statute requiring the licensing of optician
s is permissible because it has the legitimate state objective of ensuring the health of consumers, and the licensing statutes are reasonably related to ensuring their health by requiring certain education for opticians. Williamson v. Lee Optical Co.
, 348 U.S. 483 (1955)
If, however, the statute impinges on a fundamental right, such as those listed in the Bill of Rights
or the due process
rights of the Fourteenth Amendment
, then the court will apply strict scrutiny
. This means the statute must be narrowly tailored to address a compelling state interest. For example, a statute restricting the amount of funds that a candidate for public office may receive in order to reduce public corruption is unconstitutional because it is overly broad and impinges the right to freedom of speech. It affects not only corrupting individual contributions, but also non-corrupting expenditures from their own personal or family resources, as well as other sources that may not exhibit a corrupting influence. Buckley v. Valeo
, 424 U.S. 1 (1976)
The courts will also apply strict scrutiny if it targets a suspect classification
, such as race. For example, there is no fundamental right to be an optician (as explained above), but if the state only requires licenses of African Americans (and not opticians of other races), that double standard
would receive strict scrutiny, and would likely be ruled unconstitutional.
There is also intermediate scrutiny
, which is more strict than rational basis review but less strict than strict scrutiny.
, a decision of a tribunal, board, commission or other government decision-maker can be reviewed on two standards depending on the circumstances. The two standards applied are "correctness" and "reasonableness." In each case, a court must undertake a "standard of review analysis" to determine the appropriate standard to apply. This approach was described in detail by the Supreme Court of Canada
in Dunsmuir v. New Brunswick
.
The standard of review for findings of fact is such that they cannot be reversed unless the trial judge has made a “palpable and overriding error." A palpable error is one that is plainly seen. The reasons for deferring to a trial judge's findings of fact can be grouped into three basic principles. Firstly, given the scarcity of judicial resources, setting limits on the scope of judicial review in turn limits the number, length and cost of appeals. Secondly, the principle of deference promotes the autonomy and integrity of the trial proceedings. Finally, this principle recognizes the expertise of trial judges and their advantageous position to make factual findings, owing to their extensive exposure to the evidence and the benefit of hearing the testimony viva voce.
The same degree of deference must be paid to inferences of fact, since many of the reasons for showing deference to the factual findings of the trial judge apply equally to all factual conclusions. The standard of review for inferences of fact is not to verify that the inference can reasonably be supported by the findings of fact of the trial judge, but whether the trial judge made a palpable and overriding error in coming to a factual conclusion based on accepted facts, a stricter standard.
Making a factual conclusion of any kind is inextricably linked with assigning weight to evidence, and thus attracts a deferential standard of review. If there is no palpable and overriding error with respect to the underlying facts that the trial judge relies on to draw the inference, then it is only when the inference‑drawing process itself is palpably in error that an appellate court can interfere with the factual conclusion http://www.ipsofactoj.com/international/2008/Part04/int2008(04)-009.htm.
Deference
Deference is the condition of submitting to the espoused, legitimate influence of one's superior or superiors. Deference implies a yielding or submitting to the judgment of a recognized superior out of respect or reverence...
given by one court (or some other appellate tribunal) in reviewing a decision of a lower court or tribunal. A low standard of review means that the decision under review will be varied or overturned if the reviewing court considers there is any error at all in the lower court's decision. A high standard of review means that deference
Deference
Deference is the condition of submitting to the espoused, legitimate influence of one's superior or superiors. Deference implies a yielding or submitting to the judgment of a recognized superior out of respect or reverence...
is accorded to the decision under review, so that it will not be disturbed just because the reviewing court might have decided the matter differently; it will be varied only if the higher court considers the decision to have obvious error. The standard of review may be set by statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
, rule
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
or precedent
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
.
Appellate review in the United States
In the United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, there are three basic standards of review on appeal: "arbitrary and capricious," "clearly erroneous," and "de novo."
Arbitrary and capricious
Under the "arbitrary and capricious" standard, a finding of a lower court will not be disturbed unless it has no reasonable basis. For example, a finding of fact from a juryJury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
is seldom disturbed on appeal unless it is "arbitrary and capricious." The appellate courts will generally not review such findings unless those findings have no reasonable basis. For example, if a jury finds that a defendant used force during the commission of a crime, the appeals courts will not reverse this finding unless it has no reasonable basis in the testimony or other facts. Similarly, a government agency
Government agency
A government or state agency is a permanent or semi-permanent organization in the machinery of government that is responsible for the oversight and administration of specific functions, such as an intelligence agency. There is a notable variety of agency types...
's decision of an administrative law
Administrative law
Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law...
is reviewed on the arbitrary and capricious standard. Arbitrary and capricious is a legal ruling wherein an appellate court
Appellate court
An appellate court, commonly called an appeals court or court of appeals or appeal court , is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal...
determines that a previous ruling is invalid because it was made on unreasonable grounds or without any proper consideration of circumstances.
Similarly, where a lower court has made a discretion
Discretion
Discretion is a noun in the English language with several meanings revolving around the judgment of the person exercising the characteristic.-Meanings:*"The Art of suiting action to particular circumstances"...
ary ruling (such as whether to allow a party claiming a hardship to file a brief after the deadline), that decision will be reviewed for abuse of discretion. It will not be reversed unless the decision is unreasonable.
Clearly erroneous
Under the "clearly erroneous" standard, where a lower court makes a finding of fact, it will be reviewed for "plain error". It will not be reversed unless the lower court has made a decision that has its basis in a plainly erroneous understanding of the facts. For example, if a court finds that the defendant was standing 30 feet from the curb, the appeals courts will not reverse this finding unless it is obviously in contradiction to the clear and undisputed facts.In federal court
United States federal courts
The United States federal courts make up the judiciary branch of federal government of the United States organized under the United States Constitution and laws of the federal government.-Categories:...
, if a party commits forfeiture
Forfeiture (law)
Forfeiture is deprivation or destruction of a right in consequence of the non-performance of some obligation or condition. It can be accidental, and therefore is distinguished from waiver; see waiver and forfeiture....
of error, e.g. by failing to raise a timely objection
Objection (law)
In the law of the United States of America, an objection is a formal protest raised in court during a trial to disallow a witness's testimony or other evidence which would be in violation of the rules of evidence or other procedural law...
, then on appeal, the burden of proof is on that party to show that plain error occurred. If the party did raise a timely objection that was overruled, then on appeal, the burden of proof is on the other party to show that the error was harmless error
Harmless error
A harmless error is a ruling by a trial judge that, although mistaken, does not meet the burden for a losing party to reverse the original decision of the trier of fact on appeal, or to warrant a new trial. Harmless error is easiest to understand in an evidentiary context...
. This approach is dictated by Federal Rule of Criminal Procedure 52, which holds, "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded ... Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." The appellate court has discretion as to whether or not to correct plain error. Usually the court will not correct it unless it led to a brazen miscarriage of justice
Miscarriage of justice
A miscarriage of justice primarily is the conviction and punishment of a person for a crime they did not commit. The term can also apply to errors in the other direction—"errors of impunity", and to civil cases. Most criminal justice systems have some means to overturn, or "quash", a wrongful...
.
De novo
The third standard of review is de novoDe novo
In general usage, de novo is a Latin expression meaning "from the beginning," "afresh," "anew," "beginning again." It is used in:* De novo transcriptome assembly, the method of creating a transcriptome without a reference genome...
, review as if the appellate Court were considering the question for the first time. Legal decisions of a lower court on questions of law are reviewed using this standard. This is also called the "legal error" standard. It allows the appeals court to substitute its own judgment about whether the lower court correctly applied the law.
Judicial review in the United States
Generally, the Supreme Court judges legislation based on whether it has a reasonable relationship to a legitimate state interest. This is called rational basis reviewRational basis review
Rational basis review, in U.S. constitutional law, refers to a level of scrutiny applied by courts when deciding cases presenting constitutional due process or equal protection issues related to the Fifth Amendment or Fourteenth Amendment. Rational basis is the lowest level of scrutiny that a...
. For example, a statute requiring the licensing of optician
Optician
An optician is a person who is trained to fill prescriptions for eye correction in the field of medicine, also known as a dispensing optician or optician, dispensing...
s is permissible because it has the legitimate state objective of ensuring the health of consumers, and the licensing statutes are reasonably related to ensuring their health by requiring certain education for opticians. Williamson v. Lee Optical Co.
Williamson v. Lee Optical Co.
Williamson v. Lee Optical Co., 348 U.S. 483 , was a case in which the Supreme Court of the United States held that state laws regulating business will only be subject to rational basis review, and that the Court need not contemplate all possible reasons for legislation.-Background:The optician...
, 348 U.S. 483 (1955)
If, however, the statute impinges on a fundamental right, such as those listed in the Bill of Rights
Bill of rights
A bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...
or the due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
rights of the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
, then the court will apply strict scrutiny
Strict scrutiny
Strict scrutiny is the most stringent standard of judicial review used by United States courts. It is part of the hierarchy of standards that courts use to weigh the government's interest against a constitutional right or principle. The lesser standards are rational basis review and exacting or...
. This means the statute must be narrowly tailored to address a compelling state interest. For example, a statute restricting the amount of funds that a candidate for public office may receive in order to reduce public corruption is unconstitutional because it is overly broad and impinges the right to freedom of speech. It affects not only corrupting individual contributions, but also non-corrupting expenditures from their own personal or family resources, as well as other sources that may not exhibit a corrupting influence. Buckley v. Valeo
Buckley v. Valeo
Buckley v. Valeo, 424 U.S. 1 , was a case in which the Supreme Court of the United States upheld a federal law which set limits on campaign contributions, but ruled that spending money to influence elections is a form of constitutionally protected free speech, and struck down portions of the law...
, 424 U.S. 1 (1976)
The courts will also apply strict scrutiny if it targets a suspect classification
Suspect classification
In American jurisprudence, a suspect classification is any classification of groups meeting a series of criteria suggesting they are likely the subject of discrimination...
, such as race. For example, there is no fundamental right to be an optician (as explained above), but if the state only requires licenses of African Americans (and not opticians of other races), that double standard
Double standard
A double standard is the unjust application of different sets of principles for similar situations. The concept implies that a single set of principles encompassing all situations is the desirable ideal. The term has been used in print since at least 1895...
would receive strict scrutiny, and would likely be ruled unconstitutional.
There is also intermediate scrutiny
Intermediate scrutiny
Intermediate scrutiny, in U.S. constitutional law, is the second level of deciding issues using judicial review. The other levels are typically referred to as rational basis review and strict scrutiny ....
, which is more strict than rational basis review but less strict than strict scrutiny.
Canada
In CanadaCanada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, a decision of a tribunal, board, commission or other government decision-maker can be reviewed on two standards depending on the circumstances. The two standards applied are "correctness" and "reasonableness." In each case, a court must undertake a "standard of review analysis" to determine the appropriate standard to apply. This approach was described in detail by the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
in Dunsmuir v. New Brunswick
Dunsmuir v. New Brunswick
Dunsmuir v. New Brunswick, 1 S.C.R. 190; 2008 SCC 9, is the leading Supreme Court of Canada decision in Canadian administrative law on the topic of substantive review and standards of review...
.
The standard of review for findings of fact is such that they cannot be reversed unless the trial judge has made a “palpable and overriding error." A palpable error is one that is plainly seen. The reasons for deferring to a trial judge's findings of fact can be grouped into three basic principles. Firstly, given the scarcity of judicial resources, setting limits on the scope of judicial review in turn limits the number, length and cost of appeals. Secondly, the principle of deference promotes the autonomy and integrity of the trial proceedings. Finally, this principle recognizes the expertise of trial judges and their advantageous position to make factual findings, owing to their extensive exposure to the evidence and the benefit of hearing the testimony viva voce.
The same degree of deference must be paid to inferences of fact, since many of the reasons for showing deference to the factual findings of the trial judge apply equally to all factual conclusions. The standard of review for inferences of fact is not to verify that the inference can reasonably be supported by the findings of fact of the trial judge, but whether the trial judge made a palpable and overriding error in coming to a factual conclusion based on accepted facts, a stricter standard.
Making a factual conclusion of any kind is inextricably linked with assigning weight to evidence, and thus attracts a deferential standard of review. If there is no palpable and overriding error with respect to the underlying facts that the trial judge relies on to draw the inference, then it is only when the inference‑drawing process itself is palpably in error that an appellate court can interfere with the factual conclusion http://www.ipsofactoj.com/international/2008/Part04/int2008(04)-009.htm.
See also
- AppealAppealAn appeal is a petition for review of a case that has been decided by a court of law. The petition is made to a higher court for the purpose of overturning the lower court's decision....
- Appellate review
- Judicial reviewJudicial reviewJudicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
- Administrative lawAdministrative lawAdministrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law...
- United States administrative lawUnited States administrative lawUnited States administrative law encompasses a number of statutes and cases which define the extent of the powers and responsibilities held by administrative agencies of the United States Government. The executive, legislative, and judicial branches of the U.S. federal government cannot always...
- Canadian administrative lawCanadian administrative lawCanadian administrative law is the body of law that addresses the actions and operations of governments and governmental agencies. That is, the law concerns the manner in which courts can review the decisions of administrative decision-makers such as a board, tribunal, commission, agency or minister...
- Baker v. Canada (Minister of Citizenship and Immigration)Baker v. Canada (Minister of Citizenship and Immigration)Baker v. Canada , [1999] 2 S.C.R. 817 is a leading Canadian administrative law decision of the Supreme Court of Canada. The Court provided guidance on the standard of judicial review of administrative decisions...
- Dunsmuir v. New BrunswickDunsmuir v. New BrunswickDunsmuir v. New Brunswick, 1 S.C.R. 190; 2008 SCC 9, is the leading Supreme Court of Canada decision in Canadian administrative law on the topic of substantive review and standards of review...
- Baker v. Canada (Minister of Citizenship and Immigration)
- United States administrative law
External links
- article on Canadian Standard of Review
- Legal definition
- http://research.lawyers.com/Standards-of-Review-on-Appeal.html