standard of review
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In law, the standard of review is the amount of
deference Deference (also called submission or passivity) 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 re ...
given by one court (or some other
appellate In law, an appeal is the process in which cases are reviewed by a higher authority, where parties request a formal change to an official decision. Appeals function both as a process for error correction as well as a process of clarifying and ...
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 (also called submission or passivity) 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 re ...
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 or precedent (stare decisis). In the United States, "standard of review" also has a separate meaning concerning the level of deference the judiciary gives to Congress when ruling on the constitutionality of legislation.


United States

In the United States, the term "standard of review" has several different meanings in different contexts and thus there are several standards of review on appeal used in federal courts depending on the nature of the question being appealed and the body that made the decision.


Questions of fact


Arbitrary and capricious

Arbitrary and capricious is a legal ruling wherein an
appellate court A court of appeals, also called a court of appeal, appellate court, appeal court, court of second instance or second instance court, is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal. In much o ...
determines that a previous ruling is invalid because it was made on unreasonable grounds or without any proper consideration of circumstances. This is an extremely deferential standard. In
administrative law Administrative law is the division of law that governs the activities of executive branch agencies of government. Administrative law concerns executive branch rule making (executive branch rules are generally referred to as "regulations"), ...
, a government agency's resolution of a question of fact, when decided pursuant to an informal rulemaking under the Administrative Procedure Act (APA), is reviewed on the arbitrary and capricious standard.


Substantial evidence

A finding of fact made by a jury or an administrative agency in the context of APA adjudication or formal rulemaking will be normally upheld on appeal unless it is unsupported by "substantial evidence." This means something "more than a mere scintilla" of evidence. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Under the "substantial evidence" standard, appellate review extends to whether there is any relevant evidence in the record which reasonably supports every material fact (that is, material in the sense of establishing an essential element of a claim or defense). Appellate courts will not reverse such findings of fact unless they have no reasonable basis in the evidence submitted by the parties. In other words, they will not reverse unless no one submitted any testimony, documentation, or other evidence which directly or indirectly (i.e., through reasonable inferences) supports a material fact, thereby implying that the finder of fact must have engaged in impermissible speculation with no reasonable basis in order to reach a verdict. If the parties presented conflicting evidence, appellate courts applying a "substantial evidence" standard assume that the jury or administrative agency resolved the conflict in favor of the prevailing party, and in turn, appellate courts must defer to such implicit findings about which side's witnesses or documents were more believable, even if they suspect they might have ruled differently if hearing the evidence themselves in the first instance. This is a highly deferential standard.


Clearly erroneous

Under the "clearly erroneous" standard, where a trial court (as opposed to a jury or administrative agency) makes a finding of fact, such as in a
bench trial A bench trial is a trial by judge, as opposed to a trial by jury. The term applies most appropriately to any administrative hearing in relation to a summary offense to distinguish the type of trial. Many legal systems (Roman, Islamic) use ben ...
, that finding will not be disturbed unless the appellate court is left with a "definite and firm conviction that a mistake has been committed" by that court. For example, if a court finds, based on the testimony of a single eyewitness, that a defendant broke a window by throwing a 30-pound rock over 100 feet, the appeals court might reverse that factual finding based on uncontradicted expert testimony (also presented to the lower court) stating that such a feat is impossible for most people. In such a case, the appeals court might find that, although there was evidence to support the lower court's finding, the evidence taken as a whole—including the eyewitness and the expert testimony—leaves the appellate court with a definite and firm conviction that a mistake was committed by the Court below.


Questions of law


''De novo''

Under ''de novo'' review, the appellate court acts as if it were considering the question for the first time, affording no deference to the decisions below. Legal decisions of a lower court on questions of law are reviewed using this standard. This is sometimes also called plenary review or 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, as noted in '' Bose Corp. v. Consumers Union of United States, Inc.'', ''de novo'' review is required in the United States when
First Amendment First or 1st is the ordinal form of the number one (#1). First or 1st may also refer to: *World record, specifically the first instance of a particular achievement Arts and media Music * 1$T, American rapper, singer-songwriter, DJ, and rec ...
issues are raised on appeal. Questions of statutory interpretation decided by an administrative agency in a manner that has the force of law are subject to '' Chevron'' review. Questions of statutory interpretation decided by an agency in a manner that does not have the force of law are subject to '' Skidmore'' review. A new trial in which all issues are reviewed as if for the first time is called a trial ''de novo''.


Mixed questions of law and fact

Court and jury decisions concerning mixed questions of law and fact are usually subjected to de novo review, unless factual issues predominate, in which event the decision will be subject to clearly erroneous review. When made by administrative agencies, decisions concerning mixed questions of law and fact are subjected to arbitrary and capricious review. Additionally, in some areas of substantive law, such as when a court is reviewing a First Amendment issue, an appellate court will use a standard of review called "independent review." The standard is somewhere in between de novo review and clearly erroneous review. Under independent review, an appellate court will reexamine the record from the lower court as the appellate court makes its legal determinations.


Questions of judicial oversight


Abuse of discretion

Where a lower court has made a
discretion Discretion has the meaning of acting on one's own authority and judgment. In law, discretion as to legal rulings, such as whether evidence is excluded at a trial, may be exercised by a judge. Some view discretion negatively, while some view it ...
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 "plain error". One consideration is whether "unpreserved" error exists—that is, mistakes made by the lower court that were not objected to as the law requires. In such a case, the appellate court may still choose to look at the lower court's mistake even though there was no objection, if the appellate court determines that the error was evident, obvious, and clear and materially prejudiced a substantial right, meaning that it was likely that the mistake affected the outcome of the case below in a significant way. 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 The Federal Rules of Criminal Procedure are the procedural rules that govern how federal criminal prosecutions are conducted in United States district courts and the general trial courts of the U.S. government. They are the companion to the Federa ...
52, which holds, " y error, defect, irregularity, or variance that does not affect substantial rights must be disregarded, hile aplain error that affects substantial rights may be considered even though it was not brought to the court's attention." 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.


Questions of constitutionality

Questions of constitutionality are considered a type of question of law, and thus appellate courts always review lower court decisions that address constitutional issues ''de novo''. However, the term "standard of review" has an additional meaning in the context of reviewing a law for its constitutionality, which concerns how much deference the judiciary should give the legislature (i.e., the federal Congress or state legislatures) in determining whether legislation is constitutional. Concerning constitutional questions, three basic standards of review exist: rational basis, intermediate scrutiny, and strict scrutiny. This form of standard of review is sometimes also called the standard or level of scrutiny. These levels of scrutiny are normally applied to legislation, but can also be applied to judicial acts and precedents (as seen in the context of challenges to the constitutionality of awards of
punitive damages Punitive damages, or exemplary damages, are damages assessed in order to punish the defendant for outrageous conduct and/or to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsui ...
). In other words, the common law (including
case law Case law, also used interchangeably with common law, is law that is based on precedents, that is the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations. Case law uses the detailed facts of ...
) is not immune to at least some minimal amount of judicial review for compatibility with the federal Constitution.


Rational basis

Generally, the Supreme Court judges legislation based on whether it has a reasonable relationship to a ''legitimate state interest''. This is called
rational basis review In U.S. constitutional law, rational basis review is the normal standard of review that courts apply when considering constitutional questions, including due process or equal protection questions under the Fifth Amendment or Fourteenth Amendment ...
. For example, a statute requiring the licensing of
optician An optician, or ''dispensing optician'', is a technical practitioner who designs, fits and dispenses lenses for the correction of a person's vision. Opticians determine the specifications of various ophthalmic appliances that will give the nec ...
s is permissible because it is directed to the legitimate state objective of ensuring the health of consumers, and the licensing statutes are reasonably related to ensuring consumers' health by requiring certain education for opticians.


Intermediate scrutiny

Under the Equal Protection Clause, when the law targets a "quasi-suspect" classification, such as gender, the courts apply
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 (least rigorous) and strict scrutiny (most rigorous). In order ...
, which requires the law to be substantially related to an important government interest. As the name implies, it is more strict than rational basis review but less strict than strict scrutiny. Other forms of intermediate scrutiny are applied in other contexts. For example, under the Free Speech Clause, content-neutral time, place, and manner restrictions on speech are subject to a form of intermediate scrutiny.


Strict scrutiny

If a statute impinges on a fundamental right, such as those listed in the
Bill of Rights A bill of rights, sometimes called a declaration of rights or a charter of rights, is a list of the most important rights to the citizens of a country. The purpose is to protect those rights against infringement from public officials and pr ...
or the
due process Due process of law is application by state of all legal rules and principles pertaining to the case so all legal rights that are owed to the person are respected. Due process balances the power of law of the land and protects the individual per ...
rights of the Fourteenth Amendment, then the court will apply
strict scrutiny In U.S. constitutional law, when a law infringes upon a fundamental constitutional right, the court may apply the strict scrutiny standard. Strict scrutiny holds the challenged law as presumptively invalid unless the government can demonstrate t ...
. This means the statute must be "narrowly tailored" to address a "compelling state interest." The courts will also apply strict scrutiny if the law targets a suspect classification, such as race.


Canada

In Canada, 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.


See also

*
Appeal In law, an appeal is the process in which cases are reviewed by a higher authority, where parties request a formal change to an official decision. Appeals function both as a process for error correction as well as a process of clarifying and ...
*
Judicial review Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incomp ...
*
Administrative law Administrative law is the division of law that governs the activities of executive branch agencies of government. Administrative law concerns executive branch rule making (executive branch rules are generally referred to as "regulations"), ...
** United States administrative law ** Canadian administrative law ***'' Baker v Canada (Minister of Citizenship and Immigration)'' (1998) ***'' Dunsmuir v New Brunswick'' (2008) ***'' Canada (Minister of Citizenship and Immigration) v Vavilov'' (2019) *
Rational basis review In U.S. constitutional law, rational basis review is the normal standard of review that courts apply when considering constitutional questions, including due process or equal protection questions under the Fifth Amendment or Fourteenth Amendment ...
*
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 (least rigorous) and strict scrutiny (most rigorous). In order ...
*
Strict scrutiny In U.S. constitutional law, when a law infringes upon a fundamental constitutional right, the court may apply the strict scrutiny standard. Strict scrutiny holds the challenged law as presumptively invalid unless the government can demonstrate t ...
* Undue burden standard


References

{{Reflist


External links


Dunsmuir Roundtable
Faculty of Law, University of Toronto, published 4 June 2008 *