Academic

Oldfatehr on De Novo Review

By Lawrence Solum

Chad M. Oldfather (Marquette University - Law School) has posted Universal De Novo Review (George Washington Law Review) on SSRN.  Here is the abstract:

This article takes up the question of why appellate courts always review questions of law pursuant to the de novo standard of review. Put another way, it examines the familiar idea that appellate courts owe no deference to the legal rulings of trial judges. They must instead engage in what I refer to as universal de novo review - a practice pursuant to which appellate courts faced with legal questions always enjoy the authority to engage in plenary review, and never have the responsibility (or even the option) to defer to their trial-level counterparts. Despite - or perhaps because of - its familiarity and prevalence, universal de novo review has gone relatively unexamined by legal scholars. The article looks to fulfill that gap by undertaking a comprehensive analysis of its possible justifications. I also consider the appropriateness of a regime incorporating deference - something of a Chevron doctrine for trial courts - and outline some of the factors that should guide the exercise of such deference.

Highly recommended.

Full post as published by Legal Theory Blog on June 09, 2008 (boomark / email).