Thursday, November 16, 2017

Standards of review

In 76 Minn. L. Rev. 507 (1992), Myrna S. Raeder wrote "we should not be surprised that courts often do not distinguish the nature of review for Confrontation Clause challenges or evidentiary issues which raise questions of law from that of discretionary evidentiary rulings."

De novo review of legal issues requires an independent analysis.

Debra Lyn Bassett wrote in38 Hous. L. Rev. 1129 (2001) :

De novo review involves an independent evaluation by the appellate court, according no deference to the lower court's determination. n126 Issues of law are the classic example of matters subject to de novo review. n127 When applying de novo review, "if [p. 1152] the [appellate] court agrees with the trial court decision, it is sustained; otherwise, the lower court decision is reversed." n128

Abuse of discretion review accords significant weight to a trial court's conclusion, without independently ratifying the reasoning. From Nathan R. Christensen, 74 U. Chi. L. Rev. 1309 (2007)

Unlike a de novo standard, abuse of discretion gives significant deference to the trial court's ultimate determination

Bassett had written

Thus, the abuse of discretion standard of review, which accords considerable deference to the decision made at the trial level, leaves the primary responsibility for resolving that matter to the trial court. n134 In contrast, the de novo standard of review, which accords non-deferential, independent review by the appellate court, places primary decision-making authority in the appellate court.

Martha Davis wrote in

applying pure de novo review as a function of the appellate court seems certain to have different results than holding that the legal interpretation by the court below is so egregiously erroneous as to constitute abuse. Obviously, pure de novo review will be the more rigorous and intrusive.

See also Judge Cabranes text in ZERVOS, 252 F.3d 163; 2001 U.S. App. LEXIS 11732.


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