Most lawyers know that appellate courts usually review lower courts’ legal decisions de novo, while overturning factfinding and trial management decisions only if the lower court was guilty of “abuse of discretion.” In other words, if the appellate judges believe the lower court got the law wrong, they will reverse its decision; but they will only reverse a finding of fact if the lower court made an especially egregious or obvious mistake. Instant replay in the NFL and now major league baseball is similar to appellate review of factual decisions: by NFL rules, the referee’s call on the field can only be reversed if the replay provides “conclusive” or “indisputable” evidence that the ref blew it. However, law professor Joseph Blocher makes a strong argument that instant replay should instead follow the model of de novo review:
Why are instant replays in the NFL (or in any other sport) subject to a heightened standard of review that requires “conclusive” or “indisputable” evidence to overturn an incorrect call? Why not review them de novo? . . .
Standards of review insulate factfinders’ decisions from being overturned on appeal, even when reviewing judges disagree with them. A decision about trial management, for example, can be in some sense “wrong” without being an abuse of discretion. As long as it’s not the latter, it’ll stand.
And there may be good reasons for this. If standards of review are essentially a way of allocating decisionmaking authority between trial and appellate courts based on their relative strengths, then it probably makes sense that the former get primary control over factfinding and trial management (i.e., their decisions on those matters are subject only to clear error or abuse of discretion review), while the latter get a fresh crack at purely “legal” issues . . .
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