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Abstract

The level of review that an appellate court grants to a lower court’s decision, expressed as the standard of review, is usually treated as a merely procedural and often unimportant matter. However, standards of appellate review actually serve a vital role in limiting the power of reviewing courts so as to maintain the proper balance between courts at various levels of the judicial system.
An appellate system without such standards would effectively subject every case to a boundless review process amounting to a new trial for every issue, thereby extending the duration and cost of litigation. On the other hand, excessive deference to the lower courts’ rulings could transform appellate review into a rubber stamp that does little to create a coherent body of legal precedent. Applying different levels of deference to different types of judicial decisions balances the need for consistent results across the system with the need for certainty that flows from a degree of finality of lower courts’ decisions. The goal of balancing consistency and certainty that standards of review are intended to achieve can be realized in practice only if reviewing courts consistently apply the standards. Yet the question of whether a reviewing court is properly applying the standard of review in the course of rendering a decision is virtually insulated from further analysis. Moreover, there has been little academic attention directed to whether reviewing courts display and apply a consistent understanding of the meaning of each of the standards of review.
This article relates the results of a study intended to explore that question. An analysis of more than 1,200 reported opinions issued by the Illinois Appellate Court during a three-year period shows that there is a high correlation between the level of deference to be afforded to the trial court’s ruling and the affirmance rate. That correlation is observed between the five appellate districts and from year to year. The observed correlation suggests that those courts do, in fact, consistently apply the standards of review.

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