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74 Marq. L. Rev. 231 (1990-1991)
Standards of Review - Looking beyond the Labels

handle is hein.journals/marqlr74 and id is 237 raw text is: STANDARDS OF REVIEW - LOOKING BEYOND THE LABELS RONALD R. HOFER* I. INTRODUCTION In recent years, the concept of standards of review has come to the fore in appellate circles, often bewildering law students and occasional appellate practitioners. Standards of review prove difficult in both theory and prac- tice. They are not susceptible of easy definition, and few guidelines assist the bench and bar with the practical problem of getting from a particular appellate' issue to the appropriate standard of review. This article endeavors to cast some light upon the three conventional kinds of appellate questions, namely fact, law, and discretion. By doing so, it will provide some benchmarks designed to assist in assigning a particular standard of review to a particular issue. Finally, this article advocates that appellate courts reject their long- standing reliance upon the three conventional labels in favor of an analysis which affords deference to lower tribunals where they were in a better posi- tion to address a question than the appellate court would be. Appellate opinions should acknowledge not only the degree of deference afforded to particular questions, but also the reasons for that deference or lack of it. The bench and bar alike will benefit when opinions employing standards of review explain not only the what, but the why as well. * District Staff Attorney, District II, Wisconsin Court of Appeals. Adjunct Assistant Profes- sor of Law, Marquette University Law School. H.B.A., 1972, Marquette University; M.A., 1973, University of Virginia; J.D., 1981, Marquette University. The opinions expressed in this article are those of the author and do not represent the opinions of the Wisconsin Court of Appeals or the Marquette University Law School. 1. The primary focus of this article is upon appellate court review. What theory it contains is applicable to more than just Wisconsin; nevertheless, this article focuses upon Wisconsin law in order to avoid addressing the varying degrees and nuances of deference used in other jurisdictions. See generally, eg., Brennan, Standards of Appellate Review, 33 DEF. L.J. 377 (1984); Childress, Standards of Review in Eleventh Circuit Civil Appeals, 9 NOVA L.J. 257 (1985).

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