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77 Geo. Wash. L. Rev. 308 (2008-2009)
Universal De Novo Review

handle is hein.journals/gwlr77 and id is 318 raw text is: Universal De Novo Review Chad M. Oldfather* Introduction The idea that appellate courts owe no deference to the legal rul- ings of lower courts is as unexamined as it is familiar. The concept of de novo review is one that every lawyer encounters early in the course of her legal education. Moreover, she learns that the use of de novo review is universal-that every time an appellate court reviews a legal determination made by a trial court, it considers the question anew, and accords no deference to the lower court's decision. This bit of learning seems typically to be accompanied by a vague suggestion that the practice is due to expertise, specialization, or some other compe- tence advantage that appellate judges and courts enjoy relative to their trial-level counterparts.' Whatever its basis, the idea has become an accepted truth, one of those things that every lawyer knows and has known for so long that we regard it as an unalterable feature of the legal landscape.2 On reflection, however, the practice is somewhat puzzling. Surely the standard explanations are, at best, incomplete. Whatever advantages appellate courts might generally have over trial courts, it seems unlikely that they would hold across every legal question that might arise in every case. What is more, the notion of universal de novo review stands in tension with a whole host of reform efforts and * Associate Professor, Marquette University Law School. A.B., Harvard University; J.D., University of Virginia Law School. Thanks to Lawton Cummings, Jennifer Hendricks, Anita Krishnakumar, Larry Solum, Adam Steinman, Tania Tetlow, Robert Tsai, David Zaring, and participants in a workshop at Marquette University for their helpful comments and input. Thanks to Emily Bell, Josh Byers, and Daniel Van Slett for outstanding research assistance. 1 See, e.g., RICHARD D. FREER, INTRODUCTION TO CIVIL PROCEDURE § 14.7 (2006) (This intrusive review is appropriate because the determination of what the law is, is not some- thing on which the trial court would have especial expertise .... It is a dry question of research, which the appellate court may actually be better equipped than the trial court to perform.); see also ALLAN IDES & CHRISTOPHER N. MAY, CIVIL PROCEDURE 1056-57 (2d ed. 2006) (implying that the standard is based on competence, despite similar training in the law among district and appellate court judges). Other introductory texts attribute the de novo standard to the need to ensure uniformity. See, e.g., THOMAS D. ROWE, JR. ET AL., CIVIL PROCEDURE 300 (2004) (stat- ing that de novo review of questions of law reflects the importance of attempting to assure uniformity in the definition of generally applicable legal standards). 2 As Professor Caminker noted in concluding his analysis of why lower courts are bound to follow precedent, Familiarity dulls curiosity. Evan H. Caminker, Why Must Inferior Courts Obey Superior Court Precedents?, 46 STAN. L. REV. 817, 873 (1994). February 2009 Vol. 77 No. 2

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