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.

United States

In the United States, there are three basic standards of review on appeal. The first is the "arbitrary and capricious" standard, in which a finding of a lower court will not be disturbed unless 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 they 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.

The second standard of review is the "clearly erroneous" standard. Where a lower court makes a finding of fact, it will be reviewed for clear error. It will not be reversed unless the lower court has made a decision that has its basis in a clearly 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.

The third standard of review is de novo - as if the reviewing 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, although making use of the term "standards of review," is different in nature from the three standards of review listed above. Judicial review refers to a review of the constitutionality of a statute. When exercising judicial review of a statute for constitutionality, the appropriate standard of review envisioned by the framers of the Constitution was "irreconcilable variance" between the statute and the Constitution. In other words, statutes are constitutional unless they can never reasonably be reconciled with constitutional principles. Under this standard, few statutes would be found unconstitutional.

Today, however, the Supreme Court generally judges legislation based on whether it has a reasonable relationship to a legitimate state interest. 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 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)

There are also intermediate standards of review.

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. This approach was described in detail by the Supreme Court of Canada in style="font-style : italic;">David Dunsmuir v. Her Majesty the Queen in Right of the Province of New Brunswick as represented by Board of Management