Chad M. Oldfather · February 2009
77 GEO. WASH. L. REV. 308 (2009)
This Article’s aim is to enhance our understanding of the practice of de novo review, with special emphasis on four subsidiary questions. First, how might the practice of de novo review be justified? Does institutional competence provide the answer, or must we look more broadly? Second, do those justifications support the universal implementation of de novo review? Put another way, assuming there are good reasons for appellate courts to engage in de novo review of some portion of the legal determinations that come before them, do those reasons support such review of every legal issue confronted on appeal? Third, if the answer to the second question falls somewhere short of a resounding yes, might it make sense to do away with universal de novo review? Fourth and finally, assuming that we might want to reserve de novo review for certain types of cases or questions (or, to reverse the presumption, that we might want to except certain types of cases or questions from de novo review), how might we go about doing it?
The analysis, which focuses on possible consequentialist rationales for the practice, reveals that the notion of universal de novo review is nowhere near so easily warranted as our intuitions would suggest, that there is no single coherent justification for the practice, and that any serious effort to articulate a justification requires reliance on a cluster of reasons that, while they do not collectively amount to a complete justification, might nonetheless suffice to provide a rule-consequentialist account. It also reveals that there are potentially serious costs associated with universal de novo review. Because it effectively obligates courts to make law in every case presenting legal issues, it will lead to the creation of law in cases where it is inadvisable to do so, and thus lead to the creation of “bad” law. This could occur because the case before the court is factually atypical and thus not representative of the range of situations over which the rule formulated by the court will apply, because the parties fail to provide the court with the inputs it needs to engage in effective lawmaking, or because the court itself lacks the requisite legal or factual expertise to formulate an appropriate rule of law.
The remainder of the Article proceeds as follows. Part I first gives further definition to the inquiry and then attempts to provide a comprehensive review of the justifications for de novo review, accompanied in each instance by a critique of the particular justification under consideration. The analysis reveals that the primary justifications fall into two general categories. The first has to do with the institutional competence of appellate courts to resolve contested legal issues. The second includes reasons for de novo review that stem from systemic needs rather than from an assumption that appellate courts will necessarily generate better law. Part II assesses the justifications as a whole, considering whether universal de novo review can be justified on either act-consequentialist or rule-consequentialist grounds, and concluding that the latter presents the only plausible source of justification. Finally, Part III considers the possibility of deference. Even if we conclude that universal de novo review could be justified on rule-consequentialist grounds, we might determine that a readily administrable rule of non-universal review would generate an even greater net benefit. Although the Article does not attempt to articulate the content of such a rule in great detail, it does outline some of its basic components. These include a limitation to cases of first impression in which the appellate court has a basis for believing that it is at a lawmaking disadvantage.
