Judicial Background And Standards Of Review

As judges, empirically, non-criminal law practitioners are less deferential to trial court decisions than criminal law practitioners, and judges with mixed backgrounds or backgrounds as non-practicing lawyers (e.g. law professors) are the most deferential to trial court decisions. 

Over the years much ink has been spilled defining, explaining, and critiquing standards of review. Countless lawyers, judges, and scholars have flyspecked distinctions among questions of law, fact, and discretion in an effort to derive a coherent theory explaining when and whether appellate judges should endeavor to correct trial court error. Most of these theories have been premised on the notion that standards of appellate review, although sometimes ill-defined, are applied based on consistent legal or rational standards. Our research, however, supports those scholars who posit that standards of review are often influenced by extraneous factors not anchored in a coherent legal conception of deference. 

We observe that across a broad spectrum of cases, different panels of jurists apply standards of review in a disparate manner, influenced by their personal backgrounds. Our research explores numerous aspects of personal background, including prior professional legal experience, length of time on the trial court, gender, and political affiliation. Among these categories, we discovered that only one exhibited a statistically significant impact on the selection and application of the standard of review: the type of prior professional legal experience of panelists. Specifically, we find that the criminal or civil practice background of jurists on a reviewing panel influences ultimate outcomes but also shapes the selection of the standard of review.  

Based on our findings, we hypothesize that the collective training and experience of a panel in civil or criminal law significantly shapes their analogic reasoning, i.e., their mental model. Consequently, this background factor exerts more influence than others in determining how and when jurists defer to the trial court.

Kira L. Klatchko & Quinn A. Keefer, "Judicial Backgrounds Influence the Standard of Review," 55 U. Pac. L. Rev. 1 (2023). 

The conclusion of the paper states: 

“Civil law only” background panels are most likely overall to apply the de novo standard of review, meaning they are least likely to afford deference to trial court decisions even where they would have the option to do so when considering “dynamic issues.” 

“Criminal law only” panels are least likely overall to review for abuse of discretion, and in reviewing criminal cases are most likely to review for substantial evidence.  

“Other background” panels are, overall, most likely to review for abuse of discretion and least likely to review issues de novo; they are also least likely of all panels to reverse issues.

Footnote 71 of the paper defines these categories:

We define “criminal law only” background to mean that while in law practice, and before taking the bench, a justice practiced criminal law only and did not report any experience practicing any form of civil law. 

We define “civil law only” background to mean that while in law practice, and before taking the bench, a justice practiced civil law only and did not report any experience practicing criminal law. Civil law, for this purpose, includes all non-criminal law, including but not limited to general civil law, probate, family, and transactional law. 

We define “other background” such that it includes a mixture of both civil and criminal law practice experience and also nontraditional practice experience that cannot be fairly classified as either civil or criminal law, e.g., law professor. 

A panel classified as having a “majority” of “criminal law only” panelists will consist of at least two members who have a criminal law only background. A panel classified as having a “majority” of “civil law only” panelists will consist of at least two members who have a civil law only background.