Standard of review

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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.

1 United States
2 Canada
3 See also
4 External links

[edit] United States

In the United States, a finding of fact from a jury is seldom disturbed on appeal. 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 proper consideration of circumstances.

Decisions of lower courts are generally reviewed under one of three standards of review, depending on the kind of decision under consideration. 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. Where a lower court makes a finding of fact, it will be reviewed for clear error. Finally, a finding of law is reviewed de novo - as if the reviewing court were considering the question for the first time.

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.

[edit] 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 David Dunsmuir v. Her Majesty the Queen in Right of the Province of New Brunswick as represented by Board of Management.