Definition of "Standard of Review" Forum

[JackOfAllTrades]

Can anyone give me a good explanation of "standard of review" as it pertains to Con Law?

I checked the E&E, Chemerinsky, and another treatise, and all I can come up with is the "rational basis test," which is obviously that a legislative means must be reasonably adapted to achieve a legitimate ends.

But I know that "standard of review" means more than just rational basis review.

Can anyone help?

Thanks!!

[BVest]

ETA: FIRST!!!1!!!









Standard of review is the way in which the appellate court in question considers potential errors at the trial court (or lower appellate court). The Standard of Review varies for different types of cases.

For example, in cases reviewing a decision by a lower court that was within the lower court's discretion, the SOR is Abuse of Discretion. That is, even if the appellate court would have decided the issue differently, they must affirm the lower court's ruling so long as the lower court COULD have reached the decision they reached.

BTW, as a 1L, you should familiarize yourself with the remarkably helpful pages of Wikipedia.

[Avian]

BTW, as a 1L, you should familiarize yourself with the remarkably helpful pages of Wikipedia.

I second this. A lot of basic questions that I see here or on other forums could be solved by reading Wikipedia and the Free Legal Dictionary. Also Wikipedia has fairly in depth information on landmark cases. Better than a lot of the free case briefs online.

[sambeber]

Can anyone give me a good explanation of "standard of review" as it pertains to Con Law?

I checked the E&E, Chemerinsky, and another treatise, and all I can come up with is the "rational basis test," which is obviously that a legislative means must be reasonably adapted to achieve a legitimate ends.

But I know that "standard of review" means more than just rational basis review.

Can anyone help?

Thanks!!

It means both what you've implicitly stated and what posters above have written. Much of what I'm about to write is a oversimplification and generalization, but basically the two ways people mean this are:

(1) A trial court, for instance uses the standards of review that you're talking about to review a statute based by, e.g., a state legislature. Thus different kinds of laws are reviewed by the trail court as to their legality under different standards: rational basis, intermediate scrutiny, strict scrutiny, etc. These are typically formulated as X state interest (where X is legitimate/important/compelling) and Y related to the state interest (where Y is rationally/substantially/narrowly).

(2) Once a trial court decides a case, its decisions are reviewed by an appellate court under different standards depending on the type of decision. For instance, legal issues are subject to de novo or plenary review (appellate court reviews independently under the same standard as the district court), evidentiary rulings are often subject to review for abuse of discretion (the specific definition of abuse of discretion can vary, but think of at as "no reasonable court or jury could have reached this decision"), things that weren't objected to are usually reviewed for clear error, and so on.

Trial courts and appellate courts have different levels of review for bankruptcy courts, immigration tribunals, administrative agencies, etc.

HTH.

[A. Nony Mouse]

OP, take this with a grain of salt because it's been a while since I went over this, but wrt to Con Law specifically: look up "strict scrutiny" on wikipedia. Basically, SCOTUS applies various levels of review to constitutional issues, depending on what they involved, and they're a huge mess. Two are fairly clear:

"strict scrutiny" --> the law at issue is going to fail; it's almost impossible for a law to meet strict scrutiny (e.g. a race-based law)
"rational basis" --> the law at issue is going to stand; it's almost impossible for a law not to have a rational basis (e.g. based on something non-suspect like what you do for a living)

Then there's also:
"intermediate scrutiny" --> the law may or may not fail (applies to sex mostly, I think - the VMI case raises this re: single-sex schools)
"rational basis with bite [with teeth? can't remember" --> the court realizes rational basis applies but wants to strike the law anyway (Romer v. Evans)

Other scholars have identified other variations. I think I read an article in law school that identified 9 levels of scrutiny

It's all a big murky mess and the standard of review can be manipulated to achieve the results the court wants.

[ymmv]

OP, take this with a grain of salt because it's been a while since I went over this, but wrt to Con Law specifically: look up "strict scrutiny" on wikipedia. Basically, SCOTUS applies various levels of review to constitutional issues, depending on what they involved, and they're a huge mess. Two are fairly clear:

"strict scrutiny" --> the law at issue is going to fail; it's almost impossible for a law to meet strict scrutiny (e.g. a race-based law)
"rational basis" --> the law at issue is going to stand; it's almost impossible for a law not to have a rational basis (e.g. based on something non-suspect like what you do for a living)

Then there's also:
"intermediate scrutiny" --> the law may or may not fail (applies to sex mostly, I think - the VMI case raises this re: single-sex schools)
"rational basis with bite [with teeth? can't remember" --> the court realizes rational basis applies but wants to strike the law anyway (Romer v. Evans)

Other scholars have identified other variations. I think I read an article in law school that identified 9 levels of scrutiny

It's all a big murky mess and the standard of review can be manipulated to achieve the results the court wants.

Then there's Kennedy Fundamental-Liberty-Value Scrutiny, which basically ignores the entire three-tier system and applies a quasi-utilitarian balancing test of private liberty vs. state interests.
Or whatever is going on in Lawrence, Windsor, and Casey.

[A. Nony Mouse]

Yes, exactly - you can find all kinds of different levels if you look hard enough (and they're mostly written by Kennedy). I should add that my quick-and-dirty rundown shouldn't be taken as gospel at all, it's just a sketch to try to get the idea across.

[ymmv]

Yes, exactly - you can find all kinds of different levels if you look hard enough (and they're mostly written by Kennedy). I should add that my quick-and-dirty rundown shouldn't be taken as gospel at all, it's just a sketch to try to get the idea across.

It's a good sketch. And with Kennedy being the swing vote in the vast majority of partisan Constitutional cases, it just goes to show of how little value the 3-tier test is as a practical predictor. I think he recognizes the silliness of trying to assign formula to what are probably the most overtly personal value-driven decisions in all of law, and takes every opportunity to criticize the fiction accordingly.

[rinkrat19]

BTW, as a 1L, you should familiarize yourself with the remarkably helpful pages of Wikipedia.

I second this. A lot of basic questions that I see here or on other forums could be solved by reading Wikipedia and the Free Legal Dictionary. Also Wikipedia has fairly in depth information on landmark cases. Better than a lot of the free case briefs online.

I was gonna say, the wiki page on this is pretty good.

[romothesavior]

I think we are conflating different ideas here. When a lawyer hears "standard of review," I think they generally think of the level of deference given to the appellate court during review (de novo, abuse of discretion, etc.). This is what Bvest is referring to, and he's explained it very well.

Principles of strict scrutiny, rational basis, etc. are not appellate standards of review for lower court decisions; they're levels of scrutiny courts use to assess governmental actions. This is sometimes referred to as "standard of review" but it refers to a different concept than appellate review standards.

I draw this distinction because the average law class or bar exam doesn't require knowledge of appellate deference, but knowing the different tiers of scrutiny is essential. They're both sometimes referred to as the "standards of review," but the latter is what OP is likely referring to when he says "standard of review as it pertains to Con Law." I don't want OP to be confused about the variety on concepts being discussed here.

[AReasonableMan]

BTW, as a 1L, you should familiarize yourself with the remarkably helpful pages of Wikipedia.

I second this. A lot of basic questions that I see here or on other forums could be solved by reading Wikipedia and the Free Legal Dictionary. Also Wikipedia has fairly in depth information on landmark cases. Better than a lot of the free case briefs online.

also useful during cold calls

[JackOfAllTrades]

Thanks to A Nony Mouse, who actually read my question and gave me a good answer.

To the others who recommended "Wikipedia," not only did you not answer my question (which was about Std of Review as it relates to *CONSTITUTIONAL law*), but you also gave very bad advice.

Law students have access to libraries, which have treatises and other supplemental, peer-reviewed material.

Wikipedia is basically a glorified comments-section, where anyone can edit articles.

Don't EVER suggest future lawyers go get their information from Wikipedia.

You know better than that.

[ymmv]

Thanks to A Nony Mouse, who actually read my question and gave me a good answer.

To the others who recommended "Wikipedia," not only did you not answer my question (which was about Std of Review as it relates to *CONSTITUTIONAL law*), but you also gave very bad advice.

Law students have access to libraries, which have treatises and other supplemental, peer-reviewed material.

Wikipedia is basically a glorified comments-section, where anyone can edit articles.

Don't EVER suggest future lawyers go get their information from Wikipedia.

You know better than that.

On the other hand, I'm sure Wikipedia has some helpful articles on sticks, and how best to dislodge them from your prodigious ass.

[malleus discentium]

Thanks to A Nony Mouse, who actually read my question and gave me a good answer.

To the others who recommended "Wikipedia," not only did you not answer my question (which was about Std of Review as it relates to *CONSTITUTIONAL law*), but you also gave very bad advice.

Law students have access to libraries, which have treatises and other supplemental, peer-reviewed material.

Wikipedia is basically a glorified comments-section, where anyone can edit articles.

Don't EVER suggest future lawyers go get their information from Wikipedia.

You know better than that.

And yet you asked TLS, which is literally just a comments section.

[TheNextAmendment]

I think we are conflating different ideas here. When a lawyer hears "standard of review," I think they generally think of the level of deference given to the appellate court during review (de novo, abuse of discretion, etc.). This is what Bvest is referring to, and he's explained it very well.

Principles of strict scrutiny, rational basis, etc. are not appellate standards of review for lower court decisions; they're levels of scrutiny courts use to assess governmental actions. This is sometimes referred to as "standard of review" but it refers to a different concept than appellate review standards.

I draw this distinction because the average law class or bar exam doesn't require knowledge of appellate deference, but knowing the different tiers of scrutiny is essential. They're both sometimes referred to as the "standards of review," but the latter is what OP is likely referring to when he says "standard of review as it pertains to Con Law." I don't want OP to be confused about the variety on concepts being discussed here.

TITCR

[romothesavior]

Thanks to A Nony Mouse, who actually read my question and gave me a good answer.

To the others who recommended "Wikipedia," not only did you not answer my question (which was about Std of Review as it relates to *CONSTITUTIONAL law*), but you also gave very bad advice.

Law students have access to libraries, which have treatises and other supplemental, peer-reviewed material.

Wikipedia is basically a glorified comments-section, where anyone can edit articles.

Don't EVER suggest future lawyers go get their information from Wikipedia.

You know better than that.

Wow. You are a tremendous asshole and I regret popping in here to help.

[BVest]

Thanks to A Nony Mouse, who actually read my question and gave me a good answer.

To the others who recommended "Wikipedia," not only did you not answer my question (which was about Std of Review as it relates to *CONSTITUTIONAL law*), but you also gave very bad advice.

Law students have access to libraries, which have treatises and other supplemental, peer-reviewed material.

Wikipedia is basically a glorified comments-section, where anyone can edit articles.

Don't EVER suggest future lawyers go get their information from Wikipedia.

You know better than that.

Law-school relevant articles on Wikipedia are some of the best-written and edited articles on the site. Obviously you can choose to ignore advice that you seek, but here's a flow chart to help you decide how to respond to sound advice given on TLS.

FTR, if you'd clicked on the wikipedia link I included in my response, you would have been able to read this:

Questions of constitutionality are considered a type of question of law, and thus appellate courts always review these questions 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 Congress 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.

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. 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).

Intermediate scrutiny
Under the Equal Protection Clause, when the law targets a "quasi-suspect" classification, such as gender, the courts apply intermediate scrutiny, which requires the law to be substantially related to an important government interest. 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, 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 the law 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.

But since that's just wikipedia, you should probably avoid saying anything that's contained in there, because it's just a glorified comments section.

ETA: I've edited my original response so as to be more appropriate for what you're expecting.

[rinkrat19]

Thanks to A Nony Mouse, who actually read my question and gave me a good answer.

To the others who recommended "Wikipedia," not only did you not answer my question (which was about Std of Review as it relates to *CONSTITUTIONAL law*), but you also gave very bad advice.

Law students have access to libraries, which have treatises and other supplemental, peer-reviewed material.

Wikipedia is basically a glorified comments-section, where anyone can edit articles.

Don't EVER suggest future lawyers go get their information from Wikipedia.

You know better than that.

Holy shit, dude. Go fuck yourself.

[BVest]

BTW

Law students have access to libraries, which have treatises and other supplemental, peer-reviewed material.

Yeah, so get your ass to the library and read a treatise about SOR rather than lazily posting the question for other people to do your law school studying for you.

[JackOfAllTrades]

Thanks to A Nony Mouse, who actually read my question and gave me a good answer.

To the others who recommended "Wikipedia," not only did you not answer my question (which was about Std of Review as it relates to *CONSTITUTIONAL law*), but you also gave very bad advice.

Law students have access to libraries, which have treatises and other supplemental, peer-reviewed material.

Wikipedia is basically a glorified comments-section, where anyone can edit articles.

Don't EVER suggest future lawyers go get their information from Wikipedia.

You know better than that.

Wow. You are a tremendous asshole and I regret popping in here to help.

I wasn't referring to you. You also gave a good answer, and you didn't recommend Wikipedia.

[JackOfAllTrades]

BTW

Law students have access to libraries, which have treatises and other supplemental, peer-reviewed material.

Yeah, so get your ass to the library and read a treatise about SOR rather than lazily posting the question for other people to do your law school studying for you.

Maybe you missed my original post, where I explicitly stated that I consulted several references, and couldn't find a good answer.

Reading comprehension!

[JackOfAllTrades]

Thanks to A Nony Mouse, who actually read my question and gave me a good answer.

To the others who recommended "Wikipedia," not only did you not answer my question (which was about Std of Review as it relates to *CONSTITUTIONAL law*), but you also gave very bad advice.

Law students have access to libraries, which have treatises and other supplemental, peer-reviewed material.

Wikipedia is basically a glorified comments-section, where anyone can edit articles.

Don't EVER suggest future lawyers go get their information from Wikipedia.

You know better than that.

Law-school relevant articles on Wikipedia are some of the best-written and edited articles on the site. Obviously you can choose to ignore advice that you seek, but here's a flow chart to help you decide how to respond to sound advice given on TLS.

FTR, if you'd clicked on the wikipedia link I included in my response, you would have been able to read this:

Questions of constitutionality are considered a type of question of law, and thus appellate courts always review these questions 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 Congress 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.

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. 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).

Intermediate scrutiny
Under the Equal Protection Clause, when the law targets a "quasi-suspect" classification, such as gender, the courts apply intermediate scrutiny, which requires the law to be substantially related to an important government interest. 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, 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 the law 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.

But since that's just wikipedia, you should probably avoid saying anything that's contained in there, because it's just a glorified comments section.

ETA: I've edited my original response so as to be more appropriate for what you're expecting.

Thanks dude! I'll be sure to cite to this Wikipedia page for my next legal writing assignment!

[romothesavior]

Thanks to A Nony Mouse, who actually read my question and gave me a good answer.

To the others who recommended "Wikipedia," not only did you not answer my question (which was about Std of Review as it relates to *CONSTITUTIONAL law*), but you also gave very bad advice.

Law students have access to libraries, which have treatises and other supplemental, peer-reviewed material.

Wikipedia is basically a glorified comments-section, where anyone can edit articles.

Don't EVER suggest future lawyers go get their information from Wikipedia.

You know better than that.

Wow. You are a tremendous asshole and I regret popping in here to help.

I wasn't referring to you. You also gave a good answer, and you didn't recommend Wikipedia.

I don't care if you were referring to me or not. You're being a colossal ass to people who are trying to give help. And there's nothing wrong with using Wikipedia as a starting point to understand basic concepts, you twit.

[lacrossebrother]

You're an idiot also. Standard of judicial review is not the same as standard of review as that term is normally used. It's not an issue of people not reading your question, it's you not understanding basic concepts. What law school do you go to?

[georgej]

jack of all trades, master of none (except having a weird boner for hating-on wikipedia).