Law, Fact, and Discretion in the Federal Courts: An Empirical Study

The standards of review that appellate courts use to review trial court decisions occupy an enigmatic position in legal practice and scholarly commentary. The conventional wisdom among appellate advocates and judges is that standards of review are key determinants—perhaps the key determinant—in the success of an appeal. Indeed, one prominent federal appellate judge wrote that the standard of review “more often than not determines the outcome” of an appeal and another described the standard of review as “everything.” Flowing against this mainstream view, however, has long been an undercurrent of academic skepticism questioning whether standards of review actually constrain appellate judges. Even among appellate advocates, standards of review are sometimes viewed as “mere legalese” or “meaningless post hoc rationalizations” of appellate judicial decisions.

Thus, the divergent streams of thinking mean that even though the standard of review is the single most commonly invoked legal doctrine in appellate opinions, it is also probably among the least understood.