Fun with standards of review

Christopher M. Pietruszkiewicz writes a neat article entitled Reinterpreting the Role of Special Trial Judges Through Standards of Review tracing the evolution of standards of review of Special Trial Judges in the Tax Court context.  However, there is a lot of non-tax court nerdery in there, so real lawyers will read it, too.

Obviously, real lawyers know how to manipulate standards of review to their advantage.  So, real lawyers need to read this.  If you can’t do that (or don’t think that is the role of an appellate advocate), then just quit now.  Join a think tank or become an investment banker.   Just don't represent clients. Tnx TaxProfBlog.

Comments

[arizonalawdawg]

"language is an insufficient source for defining a standard because of the inability of specific terminology to produce objective certainty. It is because words are not susceptible to objective certainty that the language used in defining a standard of review could be considered irrelevant and indistinguishable." (quoted from abstract of Christopher M. Petruszkiewicz's above cited publication.")

Sounds like the Critical Legal Studies mantra to me. Maybe there's some great stuff in the article about how to argue and apply standards of review, but with an intro like that, I can only respond that I'd rather join a "think tank or become an investment banker" than live with a judiciary that believes that the language used in standards of review is "irrelevant and indistinguishable."

[S. COTUS]

I wouldn’t go so far. The article was fairly precise. I don’t see anything inherently wrong with CLS, but it probably goes a bit far to say that language is “useless.”

The standard of review of Tax Court decisions (both within the Tax Court and by 12 different Courts of Appeal) is not something easily put into a three-word phrase. It is a nuanced discussion, which encapsulates history, politics, egos, and taxes (all into one). But, this is what we signed up for in law school. If you doubt me, look at how the Tax Court was slapped in Ballard for not following its own rules (and probably violating due process, too). This, itself was a standard of review, which took quite some time to understand. And even after that, the Court of Appeals then issued orders to the Tax Court telling them what to do.

But, on a more general level, such terms as “clearly erroneous” and “abuse of discretion” are subject to discussion, which often centers around the substantive law. And, as we all know, even if the predicate facts behind a grant/denial of a motion to suppress are accorded some deference, review of them is based on whether such a search falls into the reviewing court’s impressions of how individuals come into contact with the state.

But, here is one more analogy. Lots of non-lawyers like to say, “Contract.” To them, it is this kind of magical noun. To lawyers, it is an abstract noun and verb, and “contractual” is some sort of adjective or adverb (used to differentiate something from being a tort, property, or tax issue). But, most lawyers had to suffer though a long course on “contracts” (with many words) until they began to see just what it was to “contract” with someone. And, even then, peoples’ training is just beginning.