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Appeal

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This article is about legal appeals. For rhetorical appeals, seeModes of persuasion.For other uses, seeAppeal (disambiguation).
"Appellant" redirects here. For other uses, seeAppellants.
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Inlaw,anappealis the process in whichcasesare reviewed by a higher authority, where parties request a formal change to an official decision. Appeals function both as a process for error correction as well as a process of clarifying and interpreting law.[1]Althoughappellate courtshave existed for thousands of years,common lawcountries did not incorporate an affirmative right to appeal into their jurisprudence until the 19th century.[2]

Terminology[edit]

American EnglishandBritish Englishhave diverged significantly on the topic of appellate terminology.[3]American cases go up "on appeal" and one "appeals from" (intransitive) or "appeals" (transitive) an order, award, judgment, or conviction, while decisions of British courts are said to be "under appeal" and one "appeals against" a judgment.[3]An American court disposes of an appeal with words like "judgment affirmed" (the appeal is without merit) or "judgment reversed" (the appeal has merit), while a British court disposes of an appeal with words like "appeal dismissed" (the appeal is without merit) or "appeal allowed" (the appeal has merit).[3]

History[edit]

Appellate courtsand other systems of error correction have existed for many millennia. During the first dynasty of Babylon,Hammurabiand his governors served as the highest appellate courts of the land.[4]Ancient Roman lawrecognized the right to appeal in theValerian and Porcian lawssince 509 BC. Later it employed a complex hierarchy of appellate courts, where some appeals would be heard by theemperor.[5]Additionally, appellate courts have existed in Japan since at least theKamakura shogunate(1185–1333). During this time, the shogunate establishedhikitsuke,a high appellate court to aid the state in adjudicating lawsuits.[6]

Although some scholars argue that "the right to appeal is itself a substantive liberty interest",[7]the notion of a right to appeal is a relatively recent advent in common law jurisdictions.[8]Commentators have observed that common law jurisdictions were particularly "slow to incorporate a right to appeal into either its civil or criminal jurisprudence".[9]

The idea of an appeal from court to court (as distinguished from court directly to the Crown) was unheard of in early English courts.[10]English common law courts eventually developed the writs of error andcertiorarias routes to appellate relief, but both types of writs were severely limited in comparison to modern appeals in terms of availability, scope of review, and remedies afforded.[10]For example, writs of error were originally not available as a matter of right and were issued only upon the recommendation of theattorney general(which was initially discretionary but by modern times was regularly granted).[10]Certiorari was originally available only forsummary offences;in the early 19th century, certiorari became available forindictable offences,but only to obtain relief before judgment.[10]Due to widespread dissatisfaction with writs (resulting in the introduction of at least 28 separate bills in Parliament), England switched over to appeals in civil cases in 1873, and in criminal cases in 1907.[10]

The United States first created a system of federal appellate courts in 1789,[note 1]but a federal right to appeal did not exist in the United States until 1889, when Congress passed the Judiciary Act to permit appeals in capital cases.[16]Two years later, the right to appeals was extended to other criminal cases, and theUnited States courts of appealswere established to review decisions fromdistrict courts.[17]Some states, such asMinnesota,still do not formally recognize a right to criminal appeals.[18]The U.S. Supreme Court has repeatedly ruled that there is no federal constitutional right to an appeal.[19]

Appellate procedure[edit]

We are not final because we are infallible, but we are infallible only because we are final.

—Associate Supreme Court JusticeRobert H. Jackson,discussing theSupreme Court of the United States' role as a court of last resort.[20]

TheNew York Court of Appealshearsoral argumentsin a 2009 case involving theAtlantic Yardsdevelopment in Brooklyn

Although some courts permit appeals at preliminary stages oflitigation,most litigants appeal final orders and judgments from lower courts.[21]A fundamental premise of many legal systems is that appellate courts review questions of lawde novo,but appellate courts do not conduct independent fact-finding.[22]Instead, appellate courts will generally defer to the record established by thetrial court,unless some error occurred during the fact-finding process.[23]Manyjurisdictionsprovide astatutoryorconstitutional rightfor litigants to appeal adverse decisions.[24]However, most jurisdictions also recognize that this right may bewaived.In the United States, for example, litigants may waive the right to appeal, as long as the waiver is "considered and intelligent".[25]

The appellate process usually begins when an appellate court grants a party'spetition for reviewor petition for certiorari.[26]Unlike trials, which manycommon lawjurisdictions typically perform with ajury,appeals are generally presented to a judge, or a panel of judges.[27]Before hearing oralargument,parties will generally submitlegal briefsin which the parties present their arguments at length in writing.[28]Appellate courts may also grant permission for anamicus curiaeto submit a brief in support of a particular party or position.[29]After submitting briefs, parties often have the opportunity to present anoral argumentto ajudgeor panel of judges.[30]During oral arguments, judges often ask questions toattorneysto challenge their arguments or to advance their own legal theories.[31]After deliberating in chambers, appellate courts issue formal written opinions that resolve thelegal issuespresented for review.[32]

The appeal may end with a reversal, in which the lower court's decision is found to be incorrect (resulting in the original judgement being vacated, and the lower court instructed to retry the case)[33]or an affirmation, in which the lower court's decision is found to be correct.[34]

Further information:Reversible error

Appellate courts[edit]

Main article:Appellate court
The VictorianCourt of Appeal

When considering cases on appeal, appellate courts generally affirm, reverse, orvacatethe decision of a lower court.[35]Some courts maintain a dual function, where they consider both appeals and matters of "first instance".[36]For example, theSupreme Court of the United Statesprimarily hears cases on appeal but retains original jurisdiction over a limited range of cases.[37]Some jurisdictions maintain a system of intermediate appellate courts, which are subject to the review of higher appellate courts.[38]The highest appellate court in a jurisdiction is sometimes referred to as a "court of last resort" or supreme court.[39]

See also[edit]

Notes[edit]

  1. ^Article III of the United States Constitutionspecifies that "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."[11]In 1789,Congress createdthe first system of intermediateappellate courts,known asfederal circuit courts,which had appellate jurisdiction over certain matters decided byDistrict Courts.[12]These federal circuit courts consisted of two justices from theSupreme Court of the United Statesand one district court judge.[13]In 1891, Congress created the existing system ofUnited States courts of appeals,which hear appeals from United States district courts within limited geographic areas.[14]For example, theUnited States Court of Appeals for the Fifth Circuithears appeals originating from United States district courts inLouisiana,Mississippi,andTexas.Decisions in circuit courts are usually made by rotating three-judge panels chosen from judges sitting within that circuit, and circuit courts also occasionally decide casesen banc.[15]

References[edit]

  1. ^See generally, Keenan D. Kmiec,The Origin & Current Meanings of "Judicial Activism",92Cal. L. Rev.1441, 1442 (2004) (discussing contemporary discourse regarding judicial activism); Jonathan Mallamud,Prospective Limitation and the Rights of the Accused,56Iowa L.Rev.321, 359 (1970) ( "the power of the courts to contribute to the growth of the law in keeping with the demands of society" );Realist Jurisprudence & Prospective Overruling,109U. Pa. L. Rev.1, 6 (1960) (discussing appeals as "a deliberate and conscious technique of judicial lawmaking" ).
  2. ^Stan Keillor,Should Minnesota Recognize A State Constitutional Right to A Criminal Appeal?,36Hamline L. Rev.399, 402 (2013).
  3. ^abcGarner, Bryan A.(2011).Garner's Dictionary of Legal Usage(3rd ed.). Oxford: Oxford University Press. p. 67.ISBN9780195384208.Retrieved10 September2023.
  4. ^Joseph W. Dellapenna & Joyeeta Gupta,The Evolution of the Law and Politics of Water29 (2009).
  5. ^Paul Du Plessis,Borkowski's Textbook on Roman Law82 (2015).
  6. ^John Stewart Bowman,Columbia Chronologies of Asian History and Culture133 (2013).
  7. ^Gary Stein,Expanding as per the Process Rights of Indigent Litigants: Will Texaco Trickle Down?,61N.Y.U.L. Rev.463, 487-88 (1986) (internal quotation marks omitted).
  8. ^See Peter D. Marshall,A Comparative Analysis of the Right to Appeal,22Duke J. of Comp. & Int. L.1, 1 (2011) ( "The right to appeal is a comparatively recent addition to the common law criminal process." )
  9. ^Stan Keillor,Should Minnesota Recognize A State Constitutional Right to A Criminal Appeal?,36Hamline L. Rev.399, 402 (2013)
  10. ^abcdeOrfield, Lester B. (1936)."History of Criminal Appeal in England".Missouri Law Review.1(4). Columbia: University of Missouri School of Law: 326–338.Retrieved28 April2020.
  11. ^U.S. Const. art. III, § 1.
  12. ^Daniel John Meador and Jordana Simone Bernstein,Appellate Courts in the United States7 (1994); Ruth A. Moyer,Disagreement About Disagreement: The Effect of A Circuit Split or "Other Circuit" Authority on the Availability of Federal Habeas Relief for State Convicts,82U. Cin. L. Rev.831, 836 (2014) (discussing history of federal circuit courts).
  13. ^Ruth A. Moyer,Disagreement About Disagreement: The Effect of A Circuit Split or "Other Circuit" Authority on the Availability of Federal Habeas Relief for State Convicts,82U. Cin. L. Rev.831, 836 (2014).
  14. ^Daniel John Meador and Jordana Simone Bernstein,Appellate Courts in the United States7 (1994).
  15. ^Arthur D. Hellman,"The Law of the Circuit" Revisited: What Role for Majority Rule?,32S. Ill. U. L.J.625 (2008); see also Fed. R. App. P. 35(a).
  16. ^Act of 6 February 1889, ch. 113, § 6, 25 Stat. 656, 656.
  17. ^3 March 1891, ch. 517, § 5; 26 Stat. 826, 827-28.
  18. ^Spann v. State,704 N.W.2d 486, 491 (Minn. 2005) (but noting that the right to at least one review by direct appeal or postconviction review has been recognized in Minnesota); Stan Keillor,Should Minnesota Recognize A State Constitutional Right to A Criminal Appeal?,36Hamline L. Rev.399, 401-02 (2013) ( "[S]aying 'there is no constitutional right to appeal' in criminal cases is a shibboleth" ).
  19. ^Smith v. Robbins,528 U.S. 259, 270 n.5 (2000) ( "[t]he Constitution does not... require states to create appellate review in the first place" );M.L.B. v. S.L.J.,519 U.S. 102, 110 (1996) ( "the Federal Constitution guarantees no right to appellate review" ).
  20. ^Brown v. Allen,344U.S.443, 540(1953) (Jackson, J., conc.).
  21. ^Rebecca A. Cochran,Gaining Appellate Review by "Manufacturing" A Final Judgment Through Voluntary Dismissal of Peripheral Claims,48Mercer L. Rev.979, 979-80 (1997) (noting that in the United States, "[a]ppeals through rule 54(b),2 section 1292(b), 3 the collateral order doctrine, and other avenues have become increasingly limited" ); see also Information Guide:Court of Justice of the European Union (CJEU)(noting that the court has appellate jurisdiction over decisions of lower courts).
  22. ^Debra Lyn Bassett,"I Lost at Trial - in the Court of Appeals!": The Expanding Power of the Federal Appellate Courts to Reexamine Facts,38Hous. L. Rev.1129, 1130 (2001); see alsoPullman-Standard v. Swint,456U.S.273, 291(1982) ( "[Factfinding] is the basic responsibility ofdistrict courts,rather than appellate courts... ") (internal citations and quotations omitted).
  23. ^Debra Lyn Bassett,"I Lost at Trial - in the Court of Appeals!": The Expanding Power of the Federal Appellate Courts to Reexamine Facts,38Hous. L. Rev.1129, 1130 (2001); cf. Leon Green,Judge and Jury270 (1930) ( "[T]hose equally expansible and collapsible terms 'law' and 'fact'... They are basic assumptions; irreducible minimums and the most comprehensive maximums at the same instant. They readily accommodate themselves to any meaning we desire to give them." )
  24. ^See Appellate Jurisdiction Act 1876 (39 & 40 Vict. c.59) (establishing a nearly unlimited right of appeal to the Lords in England and Wales); Act of 6 February 1889, ch. 113, § 6, 25 Stat. 656, 656 (establishing a statutory right to appeals in federal capital cases in the United States).
  25. ^See, e.g.,United States v. Mendoza-Lopez,481U.S.828(1987).
  26. ^See e.g. Sup. Ct. R. 10(a), available atRules of the Supreme Court of the United States (2013).
  27. ^Debra Lyn Bassett,"I Lost at Trial - in the Court of Appeals!": The Expanding Power of the Federal Appellate Courts to Reexamine Facts,38Hous. L. Rev.1129, 1131 (2001) ( "This established dichotomy between the responsibilities of the jury and those of the reviewing court resulted from the jury's revered position in our country's history." ).
  28. ^See, e.g., Sup. Ct. R. 15, available atRules of the Supreme Court of the United States (2013).
  29. ^See, e.g., Sup. Ct. R. 37, available atRules of the Supreme Court of the United States (2013).
  30. ^See, e.g., Sup. Ct. R. 28, available atRules of the Supreme Court of the United States (2013).
  31. ^Sarah Levien Shullman,The Illusion of Devil's Advocacy: How the Justices of the Supreme Court Foreshadow Their Decisions During Oral Argument,6J. App. Prac. & Process271 (2004).
  32. ^See e.g. Sup. Ct. R. 41, available atRules of the Supreme Court of the United States (2013).
  33. ^"reversal".cornell.edu.Retrieved14 October2023.
  34. ^"affirm".cornell.edu.Retrieved14 October2023.
  35. ^Joan Steinman,Appellate Courts as First Responders: The Constitutionality and Propriety of Appellate Courts' Resolving Issues in the First Instance,87Notre Dame L. Rev.1521, 1522 (2012).
  36. ^Joseph D. Kearney & Thomas W. Merrill, The Influence of Amicus Curiae Briefs on the Supreme Court, 148 U. Pa. L. Rev. 743, 837 n.6 (2000).
  37. ^James E. Pfander,Rethinking the Supreme Court's Original Jurisdiction in State-Party Cases,82 Cal. L. Rev. 555, 555 (1994).
  38. ^Joan Steinman,Appellate Courts as First Responders: The Constitutionality and Propriety of Appellate Courts' Resolving Issues in the First Instance,87Notre Dame L. Rev.1521, 1542 (2012) (discussing role and function of intermediate appellate courts).
  39. ^Gregory L. Acquaviva and John D. Castiglione,Judicial Diversity on State Supreme Courts,39Seton Hall L. Rev.1203, 1205 (2009).
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