Do standards of review matter? On the one hand, judges insist that they do, and appellate practitioners know that they ignore standards of review at their peril. On the other hand, it is not unusual to find judges and academics who concede that there is not much difference between the many standards of review, and that the articulation of the standard may not make much of a difference in reversal rates.

To test the question, researchers would ideally take a set of cases, have a court decide them under one standard of review, and then, while avoiding any bias from deciding the same cases twice, have the same court decide the cases under a different standard. Though this is not a practical experiment, recent legal history offers examples in which legislative and judicial decisions have altered the standard of review for particular types of cases. By comparing reversal rates that precede a change in the standard against reversal rates in the same court from cases that post-date it, researchers can come as close as possible to the ideal experiment: testing the same cases under two different standards.

An initial look at one instance of a changed standard of review supports the proposition that merely altering the standard does not shift reversal rates. This look also suggests a hypothesis about standards of review that might reconcile the tension between those who are convinced that standards matter and those who think they do not. In particular, this Article suggests that standards of review are unlikely to drive changes in reversal rates because the standards are not drivers; rather, standards reflect an understanding about the role of various institutions within the legal system in a particular type of case. Unless those understandings change, reversal rates are unlikely to change even if the standard does. For that reason, legislatures and practitioners seeking to influence appellate court reversal rates should focus more of their attention on changing those understandings, rather than merely changing the language of the standard. Finally, this Article suggests an agenda for future investigations into the standard of review by pointing out two other instances where the standard changed. Examining reversal rates associated with those instances will continue this investigation into the source and significance of standards of review in our legal system.

First Page


Included in

Law Commons