Standard of review

Standard of review

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.


Appellate review in the United States

In the United States, 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 jury 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 discretionary 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, 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.

De novo

The third standard of review is de novo, 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 review. For example, a statute requiring the licensing of opticians 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.


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. 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 [1].

See also

External links

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