Abstract

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 pinpoint the definition of the traditional standards of review such as clearly erroneous or abuse of discretion, however, courts are nonetheless able to apply these standards because they are universal, commonly articulated, and develop a meaning by the frequent repetition in application. It is not impossible to apply non-traditional standards of review; however, because of the imprecision of language and the lack of an objective measurement, it is unrealistic for an infinite number of non-traditional standards of review to exist. Standards of review, therefore, should be limited to a familiar set of gradations. In 2005, the Supreme Court, in Ballard v. Commissioner, decided arguably the most significant procedural tax case since 1960. As a result of the decision in Ballard, the United States Tax Court modified its procedural rules, adopting a non-traditional standard of review that requires the Tax Court to give [d]ue regard to a determination of a special trial judge based on credibility determinations and that the findings of fact recommended by the Special Trial Judge shall be presumed to be correct. In the context of the relationship between a special trial judge and a Tax Court judge, this non-traditional standard of review fails to fit with the customary, traditional standard of review matrix. By not applying terminology with which courts interact frequently, the Tax Court adopted a standard that will lack uniformity in application and will produce inconsistency in result.