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33 S.D. L. Rev. 469 (1988)
A Basic Guide to Standards of Judicial Review

handle is hein.journals/sdlr33 and id is 483 raw text is: A BASIC GUIDE TO STANDARDS OF JUDICIAL REVIEW MARTHA S. DAVIS* At its simplest, the phrase standard of review denotes the degree of deference that a reviewing court gives to the actions or decisions under review. In the alternative, the phrase describes the positive authority which the ap- pellate court wields in its review.' It defines the relationship and power shared by decisionmakers.2 The titles of the standards and basic definitions are deceptively simple, but because every case presents its own unique problems, attempts to apply the standards quickly become convoluted. Should an issue be treated as a unit, or should it be analyzed, layer after layer, until the component parts are reduced to absurdity? Should the overarching philosophy concentrate on the effects of review on the outcome, or should the reviewing court try to invoke the standards as pure theory? Everything here presented is an oversimplifica- tion of the review standards. The attempt here is to introduce the words and phrases encountered in standards of review opinions to establish a basic under- standing of the phrases and the direction in which they should lead the re- viewer. Many things not here considered impinge on how the standards work, such as which court is reviewing and which is reviewed, the subject of the case, and what is happening in the world politically and otherwise. For that reason, this article is not intended as a final word on any of the standards. Rather, it is intended to make court opinions dealing with the subject more understandable.3 I. CAVEAT-WHAT A STANDARD OF REVIEW IS NOT Standards of review are in some ways related to standards of proof and burdens of proof but should never be mistaken for those evidentiary direc- tives.4 Standards of proof are concerned with the quantum and quality of proof that must be presented in order to prevail on an issue. Proof ranges * Associate Dean and Associate Professor, University of South Dakota School of Law; LL.M., Harvard Law School; J.D., Baylor Law School; B.A., The University of Texas at Austin; co-author with Steven Alan Childress of STANDARDS OF REVIEW (Wiley, 1986), from which this essay is drawn. Volume I, on Civil matters, was largely written by Mr. Childress; Volume II, on Criminal and Administrative matters, was largely written by Dean Davis. References hereafter in these notes shall be to 1 CHILDRESS AND DAVIS for Volume 1, and 2 CHILDRESS AND DAVIS for Volume 2. 1. 1 CHILDRESS AND DAVIS, STANDARDS OF REVIEW § 1.1, p. 4 (Wiley, 1986). 2. On quite a different level, the standard of review may also indicate the materials available to the reviewer in performing the review function and the manner in which those materials must be used. That inquiry is most often a threshold issue of review. See 1 CHILDRESS AND DAVIS § 1.1. 3. It is noted that courts are often themselves less than clear about which standard is being applied and the rationale behind the application. Part of the reason for this essay is to help appellate counsel make appropriate suggestions to the court on the applicability of the proper standards. 4. See generally 1 CHILDRESS AND DAVIS § 1.3 (cited in note 1). One of the standards of review, substantial evidence, is often used in a way that points to a quantum of evidence to indicate the basis for application of the standard. Although substantial evidence has been described as falling between a mere scintilla and the weight of the evidence, both standards of proof, see Tibbs v.

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