Sentences with phrase «appellate review post-booker»

The court of appeal restated the test for appellate review of the best interests of the child.

The foregoing demonstrates that the application of Rule 1910.16 - 5 (m) has been fact - specific and inconsistent in shared custody cases, partly because the «abuse of discretion» standard of appellate review necessitates subjective analysis of a myriad and disparate variety of family circumstances.

We have a system that cries out for drastic reform — a reform that can be brought about only by a re-examination of fundamental concepts of federal appellate review.

[31] The level of requisite detail in reasons will be lessened «[w] here the record discloses all that is required to be known to permit appellate review»: Hill v. Hamilton - Wentworth Police Services Board, 2007 SCC 41 (CanLII), [2007] 3 S.C.R. 129, at para. 101.

The premise underlying the Federal Circuit's narrowing of Chenery — that agencies ought to be subject to the same rules for appellate review as litigants on appeal from the decisions of district courts — is fatally flawed.

And, of course, the limitation on appellate review of factual determinations under Rule 52 (a) is no more stringent than the limitation on federal appellate review of a jury's factual determinations under the Seventh Amendment, which commands that

[30] Having concluded that the reasons of the Small Claims Court were facially incapable of appellate review, the Divisional Court was obliged to consider the record before the trial judge to determine if the reasons were more comprehensible when read in the context of this record.

The question before us is how this broad principle of governance translates into specific rules of appellate review.

Both the majority and the minority in the Supreme Court purported to apply the established case law about appellate review and each side robustly accused the other of not understanding or properly applying the law.

Canadian courts have consistently adopted a similarly deferential approach to the appellate review of factual findings, as illustrated most notably by the Supreme Court of Canada's judgment in Stein v.

calling more evidence than they need to, including marginally useful evidence, listening to more argument than they need to, disclosing more information than they need to, taking too long to rule and then ruling in the most protective way, out of undue concern for appellate review.

The Supreme Court explained that this circumscribed approach to appellate review is rooted in the importance of finality in litigation, rather than any notion «that appellate court judges are somehow smarter and thus capable of reaching a better result.

In Housen, the Supreme Court of Canada expressly adopted the correctness standard for the appellate review for questions of law.

The salutary purposes underlying broad appellate review on appeals from convictions are engaged and must be served no matter how heinous the crime or despicable the accused.

The most plausible explanation lies in the very limited scope that exists for appellate review in this area.

Watt J.A. refers to and applies the principles laid down in Borowski v. Canada (Attorney General), 1989 CanLII 123 (S.C.C.), the Court of Appeal deciding ultimately to ignore the mootness of the issue on the grounds that the issue of interim custody had and continues to have social importance and that because the issue was alive for a short period of time it was «largely evasive of appellate review.»

With respect to procedural due process, the structure of retributive damages is fully compatible with judicial and appellate review (per Honda), de novo review of retributive damages in federal courts (per Cooper Industries), and a prohibition on punishing a defen - dant based on harms to strangers to the litigation (per Philip Morris).

The Supreme Judicial Court granted further appellate review, and, after reviewing the law in this area over the last century, the Court concluded that the distinction between natural and unnatural accumulations of snow and ice was a «relic of abandoned landlord - tenant law» which «has sown confusion and conflict in our case law.»

But some lower courts have found that to be an improper avenue for seeking appellate review of a class certification decision.

In my view, when counsel fully address the Guidelines in argument, and a trial judge decides to award a quantum of support outside the suggested range, appellate review will be assisted by the inclusion of reasons explaining why the Guidelines do not provide an appropriate result.

[19] Finally, appellate review of punitive damages must adopt a «de novo» standard of review of the jury's award, at least when the action is a federal case.

The Eighth Circuit granted discretionary appellate review under Rule 23 (f) and reversed both the order on the motion to dismiss and the class certification ruling, remanding with direction to dismiss the complaint.

While trial attorneys know they must preserve issues they wish to raise on appeal, they often overlook the basic steps required to help ensure appellate review.

More generally, however, the article echoes Simon Archer's view that, if the decision survives appellate review, it would be bad news for employees and pensioners.

A different and less deferential standard applies to appellate review of a jury award of punitive damages.

Of course «justice» here in the Mian case is balancing on a fine line as justice must not only be seen to be done in the scope of the appellate review but justice must also be done in the very decision the appellate court makes.

As a general rule, decisions of the district courts of appeal represent the final appellate review of litigated cases.

This chart provides a quick reference regarding motions and objections that may be made immediately prior to, during, and immediately after trial to preserve issues for appellate review.

Judges are held accountable for their actions through the requirement of producing reasons for their decisions, by appellate review and through the open court principle.

The court's proposal, that a document not referred to either in evidence or an argument could be inferred by the court to be unimportant, was generally acceptable to counsel as a pragmatic approach, but not to the extent that it limited appellate review.

In B.C. the scope of appellate intervention in commercial arbitration is narrow: there is limited jurisdiction for appellate review of arbitration awards because B.C. is statutorily limited to questions of law (Arbitration Act, s. 31); even where such jurisdiction exists, the S.C.C. held that a deferential standard of review — reasonableness — «almost always» applies to arbitration awards (Sattva Capital v. Creston Moly Corp., [2014] 2 S.C.R. 633, at paras. 75, 104 and 106).

«Drawing on our previous work in positive political theory, this essay argues that binding sentencing guidelines are necessary to constrain trial - court discretion and permit meaningful appellate review.»

However, Gall and Kimbrough ultimately have more to do with judicial discretion and appellate review than with the Sixth Amendment, and back in 1996 the Court came together in Koon to deliver a unanimous ruling (per Justice Kennedy) that embraced broader district court sentencing discretion and light appellate review.

Moreover, its case law discourages the transparency needed for appellate review and public scrutiny.

By giving the most repugnant appellant full recourse to meaningful appellate review, and by subjecting the apparently most deserving convictions to careful appellate scrutiny the integrity of the process is maintained and a commitment to the unbending application of the rule of law is affirmed...

As I have noted before, the fact that Gall seemed to loosen the stardards for appellate review of variances will not always benefit defendants.

But deference is not abdication, and appellate review would allow true outlier sentences to be corrected.

«Prevailing party» determinations under Santisas v. Goodin, 17 Cal.4 th 599, 617 (1998)[one of our Leading Cases] are especially subject to de novo review given that the facts frequently are undisputed and only legal issues are presented for appellate review.

The Court has taken too rosy a view of trial - court sentencing discretion, undervaluing appellate review as a check on policy and ideological variations.

Gall is a great case to determine the discretion available to district courts, as well as the standard of appellate review post-Booker.

The reasons as rendered by the judge did allow for a meaningful appellate review.

This appeal tests the nature and extent of appellate review over sentencing under the new regime of advisory Sentencing Guidelines.

trial judges who remain unsatisfied by counsel's submissions should provide clear and cogent reasons for departing from the joint submission (and as the S.C.C. wrote, these «[r] easons will... facilitate appellate review.»)

But, if the process is not thoughtful or poorly reasoned, or is plainly disrespectful of the text of 3553 (a), then more searching appellate review seems justified.

Inadequate reasons therefore pose a particular challenge for appellate review.

The simple underlying rule is that if, in the opinion of the appeal court, the deficiencies in the reasons prevent meaningful appellate review of the correctness of the decision, then an error of law has been committed.»

Accordingly, the Court of Appeal determined that, in the present matter, «Questions of fact or of mixed fact and law from which no legal error is extricable are expressly precluded from appellate review».

At the end of the five - day period, petitioner produced substantially all the data called for by the production order except its membership lists, as to which it contended that Alabama could not constitutionally compel disclosure, and moved to modify or vacate the contempt judgment, or stay its execution pending appellate review.

This will undermine the quality of adjudication and appellate review by failing to elicit relevant evidence and perpetuating opaque analysis and reasoning.

In the pre-Booker era, appellate review did not constrain these choices sufficiently to prevent considerable disparity among judges and regions, and it is doubtful it would do so now.