Thursday, December 21, 2006
Course on "Standards of Review"
A comment on David Post’s recent Volokh discussion of assigning edited vs. unedited cases stated as follows:
Standard of review. Standard of review. Standard of review. That's always what the casebooks take out, and it's often the dispositive part of the opinion. And it's usually not the job of _any_ particular class to cover it, so it's possible for students to graduate with only a passing awareness of the concept. It should be drilled into them, at every opportunity.
Understanding how to apply standards of review is of enormous importance (it’s raised difficult issues for me on my Journal, while clerking, in practice, even last week in a faculty meeting). And I don’t think students get a good enough sense of how important it is. In fact I’d love to develop such a course; has anyone done so? Or do people include such discussion as part of other courses? There’s a great book, Childress and Davis’s Federal Standards of Review (3d ed.), though perhaps it's dated now. My hesitation has always been working it into a full-length course—though one might incorporate empirical analysis, comparative analysis, historical perspectives. . . .
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A whole class? Couldn't it be 2 or 3 sessions in an appellate/appellate advocacy class? That's where it is most important.
Posted by: Michael Risch | Dec 21, 2006 3:58:10 PM
i don't know about a course, but judge harry edwards of the dc circuit is preparing a treatise on the subject.
Posted by: anonymous | Dec 22, 2006 1:45:11 PM
Thanks for the reminder of how often review standards matter (even at faculty meetings, ugh, and football games)--and of course for the shout-out on the Federal Standards of Review treatise by Martha Davis and me. (In our defense, the cumulative supplement is current through September 06, but you are right that it is due for a new edition, slated for 08. Certainly my jokes are stale.) I know that Martha was at one point working on a course in the subject (including a lot of advanced admin law and theory on "discretion") and will check to see whether she ever got to offer it.
Posted by: Alan Childress | Dec 22, 2006 11:45:35 PM
Yes, I have prepared and taught twice a seminar on Standards of Review. It was listed in our curriculum updates in the group "advnaced procedure." I used the treatise (Federal Standards of Review") as the outline, put some heavy emphasis on Texas cases, and let the students guide to their main interests/feelings of inadequacy. Because it was loosely organized, we managed to spend a fair amount of time on the mechanics of preparing for and doing an appeal and on the things one must do in trial to prepare for appeal,whether it happens or not. It was fun to teach and, according to the students, quite helpful in giving some additional structure to trial.
Posted by: Martha Davis | Dec 23, 2006 4:16:06 PM
Judge Edwards' book is not out and available on Amazon. I'm not objective but I think it's terrific.
Posted by: Virginia Seitz | Sep 8, 2007 5:20:18 PM
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