Posted by: captainfalcon | March 22, 2010


Lawrence Solum has a new entry in the legal theory lexicon on Standards of Review. Standards of Review state what sort of deference a court should give to another entity (be it a lower court, a jury, an administrative agency, etc.). Solum gives some examples, some of which I’ll summarize:

1. Relationship between judge and jury: A judge ought to uphold any decision that could have been reached by a reasonable jury.

2. Relationship between appellate and trial courts

(a) An appellate court ought to uphold a trial court’s finding of law provided that the trial court’s finding is correct (that is, it may review de novo the trial court’s decision on points of law).

(b) An appellate court ought to uphold any trial court’s finding of fact unless it is clearly erroneous.

(c) An appellate court ought to uphold any trial court’s discretionary decision (granting a motion, or overruling an objection, etc.) unless it is an abuse of discretion.

3. Relationship between courts and Congress: Rational basis and strict scrutiny – everyone’s familiar with these.

4. Relationship between courts and agencies: A court ought to uphold any interpretation of a pertinent statute given by an agency, unless that interpretation is unreasonable. (Solum points out the ironic implication that “The Chevron doctrine seems to imply that administrative agencies should receive more deference on questions of law than trial courts receive under the de novo standard of appellate review.”)

He then raises a “puzzle” about standards of review, but I’m not really seeing it. He begins by noting two different types of deferential standard of review. First, deference to authority: x is authorized to make the decision, so I defer to his decision even if it is wrong. Second, epistemic deference, when you defer to another entity’s “experience and reliability in forming [your] own beliefs.” He next observes that some of the deferential standards of review don’t require either type of deference:

[I]t might be argued that some standards of review seek a middle ground between “deference to authority” and “epistemic deference.”  Perhaps, a jury can be reasonable, even though the trial judge knows the jury was wrong–if so, then the “reasonable jury” standard is not a matter of epistemic deference.  But trial judges are not required to defer entirely to the authority of the jury–the judge retains the power to set aside verdicts contrary to the weight of the evidence.  The hard question that remains is “what exactly is this “middle ground?”  How can you believe a jury is wrong but reasonable?

At the risk of sounding like an ass, how can you believe a jury is wrong but reasonable doesn’t seem a uniquely hard question, because (pace Solum) deference to authority and epistemic deference aren’t exhaustive rationales for deferential standards of review. There are any number of more-or-less controversial ways of cashing out how you can believe a jury is wrong but reasonable, from defending a “satisficing” conception of reasonableness to giving a rationale, rooted in defense of epistemic humility, according to which as long as the weight of reason isn’t overwhelmingly in favor of one side or another, belief in either is reasonable (at least in the legal sense of the term). I am sure there are others, too.

The important point, though, is that each conception is supposed to explain essentially the same set of paradigmatic cases of reasonable disagreement. We all pretheoretically agree that there are cases of reasonable disagreement, and we can see the ballpark in which our conception of reasonability has to fall in order for it to accommodate these cases. This same state of affairs holds for just about any coherent concept: chair, table, redness, even authority, deference, and so forth.

So, if we should lose sleep over our inability to construct an analysis of reasonability according to which a jury can be wrong but reasonable, then we should equally lose sleep over a lot of things. Happily, for reasons GE Moore gives, we needn’t lose sleep over any of it. We only think we should if we’re “confusing the question whether we understand [some proposition’s (= statement’s)] meaning (which we all certainly do) with the entirely different question whether we know what it means, in the sense that we are able to give a correct analysis of its meaning. The question what is the correct analysis of the proposition meant on any occasion … is, it seems to me, a profoundly difficult question…”.

If all Solum is getting at is the difficulty of conceptual analysis, then, I agree, it is difficult. But deferential standards of review that are rooted neither in considerations of authority or another’s supposed epistemic superiority don’t pose an extraordinary challenge.


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