Judicial Backgrounds Influence the Standard of Review.

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. [ABSTRACT FROM AUTHOR]