Federal Standards of Review, 4th ed.

AuthorGabriel, Henry Deeb
PositionBook review

As every experienced appellate lawyer knows, each appeal starts with the standard of review. The reason is simple: The scope of appellate review is limited by a specific standard of review based on the type of case and the issue being appealed. Whether she handled the trial or not, appellate counsel must master the record fully, for only after mastering the record can she determine which of its parts are critical to the appeal.

But what is counsel to do in the face of a voluminous record? As Professors Childress (1) and Davis (2) remind us, the key to what counsel must extract and organize from the record is determined by the standard of review, which "prescribes the degree of deference given by the reviewing court to the actions or decisions under review." (3) Only by having this level of deference clearly in mind can counsel select those aspects of the record necessary to formulate the issues as they will be presented to the court. Without having articulated the standard of review prior to working through the record, counsel risks wasting much valuable time flummoxed by the volume of information instead of moving through the record quickly to amass the essential parts that support the case. Moreover, if counsel does not tailor her argument around the standard of review, she may miss altogether the specific question that the court must address to resolve the case. (4) In sum, the appropriate standard of review is essential to appellate practice.

How does one begin to find the standard of review? It differs depending on whether the case on appeal is criminal, civil, or administrative. And among these three categories, the divisions multiply quickly. In civil cases, for example, there are different standards for jury trials and bench trials, findings of fact and conclusions of law, dismissal on the pleadings and the granting of summary judgment. Nor, within our federal appellate system, is there a unified standard among the different circuits.

Any lawyer familiar with this multitude of standards knows the frustration of trying to target the exact standard of review appropriate to a specific case and appreciates the need for a single, concise, and accurate text that fully explores this complex and murky area of the law. Since the first edition was published in 1986, Federal Standards of Review has met this need. Professors Childress and Davis, both former federal law clerks, have been working on this project for over thirty years, and they...

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