Law Commons^™

Economic Substance And The Standard Of Review, Christopher M. Pietruszkiewicz

Christopher M. Pietruszkiewicz

Traditionally, appellate review hinged on the distinction between law and fact, producing a simplistic exercise – appellate courts review legal conclusions de novo while factual findings are reviewed under a clearly erroneous standard of review. The systemic difficulty with the fact/law distinction is defining fact and defining law. While appellate courts often create sound bites and offer elaborate musings on the definition of each, they maintain the misguided illusion that a trial court determination is either a question of law or a question of fact. In essence, an appellate court uses the fact/law distinction and the attendant standard of review …

Economic Substance And The Standard Of Review, Christopher M. Pietruszkiewicz

Christopher M. Pietruszkiewicz

Traditionally, appellate review hinged on the distinction between law and fact, producing a simplistic exercise – appellate courts review legal conclusions de novo while factual findings are reviewed under a clearly erroneous standard of review. The systemic difficulty with the fact/law distinction is defining fact and defining law. While appellate courts often create sound bites and offer elaborate musings on the definition of each, they maintain the misguided illusion that a trial court determination is either a question of law or a question of fact. In essence, an appellate court uses the fact/law distinction and the attendant standard of review …

Reinterpreting The Role Of Special Trial Judges Through Standards Of Review, Christopher M. Pietruszkiewicz

Christopher M. Pietruszkiewicz

Standards of review define the scope of power between judicial actors by dictating the level of discretion given to an original trier of fact. In the articulation of a standard of review, 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.

While the words may be indistinguishable, it is the uniformity of terms that promotes consistency in application. It may be impossible to …