Appeal

In law, an appeal is the process in which cases are 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] Although appellate courts have existed for thousands of years, common law countries did not incorporate an affirmative right to appeal into their jurisprudence until the 19th century.^[2]

Terminology

American English and British English have 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

Appellate courts and other systems of error correction have existed for many millennia. During the first dynasty of Babylon, Hammurabi and his governors served as the highest appellate courts of the land.^[4] Ancient Roman law recognized the right to appeal in the Valerian and Porcian laws since 509 BC. Later it employed a complex hierarchy of appellate courts, where some appeals would be heard by the emperor.^[5] Additionally, appellate courts have existed in Japan since at least the Kamakura shogunate (1185–1333). During this time, the shogunate established hikitsuke, 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 and certiorari as 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 the attorney general (which was initially discretionary but by modern times was regularly granted).^[10] Certiorari was originally available only for summary offences; in the early 19th century, certiorari became available for indictable 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]

In 1789, Congress created the first system of intermediate appellate courts, known as federal circuit courts, which had appellate jurisdiction over certain matters decided by District Courts.^[11] These federal circuit courts consisted of two justices from the Supreme Court of the United States and one district court judge.^[12] With the Circuit Court of Appeals Act of 1891, it created a Circuit Court of Appeal, which would provide an improved appeals process while also alleviating part of the appellate burden of lower courts by adding nine Circuit Courts (today 12). The 1891 act created the existing system of United States courts of appeals, which hear appeals from United States district courts within limited geographic areas.^[13] For example, the United States Court of Appeals for the Fifth Circuit hears appeals originating from United States district courts in Louisiana, Mississippi, and Texas. 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 cases en banc.^[14]

Appellate procedure

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

—Associate Supreme Court Justice Robert H. Jackson, discussing the Supreme Court of the United States' role as a court of last resort.^[15]

Although some courts permit appeals at preliminary stages of litigation, most litigants appeal final orders and judgments from lower courts.^[16] A fundamental premise of many legal systems is that appellate courts review questions of law de novo, but appellate courts do not conduct independent fact-finding.^[17] Instead, appellate courts will generally defer to the record established by the trial court, unless some error occurred during the fact-finding process.^[18] Many jurisdictions provide a statutory or constitutional right for litigants to appeal adverse decisions.^[19] However, most jurisdictions also recognize that this right may be waived. In the United States, for example, litigants may waive the right to appeal, as long as the waiver is "considered and intelligent".^[20]

The appellate process usually begins when an appellate court grants a party's petition for review or petition for certiorari.^[21] Unlike trials, which many common law jurisdictions typically perform with a jury, appeals are generally presented to a judge, or a panel of judges.^[22] Before hearing oral argument, parties will generally submit legal briefs in which the parties present their arguments at length in writing.^[23] Appellate courts may also grant permission for an amicus curiae to submit a brief in support of a particular party or position.^[24] After submitting briefs, parties often have the opportunity to present an oral argument to a judge or panel of judges.^[25] During oral arguments, judges often ask questions to attorneys to challenge their arguments or to advance their own legal theories.^[26] After deliberating in chambers, appellate courts issue formal written opinions that resolve the legal issues presented for review.^[27]

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)^[28] or an affirmation, in which the lower court's decision is found to be correct.^[29]

Appellate courts

When considering cases on appeal, appellate courts generally affirm, reverse, or vacate the decision of a lower court.^[30] Some courts maintain a dual function, where they consider both appeals and matters of "first instance".^[31] For example, the Supreme Court of the United States primarily hears cases on appeal but retains original jurisdiction over a limited range of cases.^[32] Some jurisdictions maintain a system of intermediate appellate courts, which are subject to the review of higher appellate courts.^[33] The highest appellate court in a jurisdiction is sometimes referred to as a "court of last resort" or supreme court.^[34]

Notes

References

^ See generally, Keenan D. Kmiec, The Origin & Current Meanings of "Judicial Activism", 92 Cal. L. Rev. 1441, 1442 (2004) (discussing contemporary discourse regarding judicial activism); Jonathan Mallamud, Prospective Limitation and the Rights of the Accused, 56 Iowa 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, 109 U. Pa. L. Rev. 1, 6 (1960) (discussing appeals as "a deliberate and conscious technique of judicial lawmaking").
^ Stan Keillor, Should Minnesota Recognize A State Constitutional Right to A Criminal Appeal?, 36 Hamline L. Rev. 399, 402 (2013).
^ ^a ^b ^c Garner, Bryan A. (2011). Garner's Dictionary of Legal Usage (3rd ed.). Oxford: Oxford University Press. p. 67. ISBN 9780195384208. Retrieved 10 September 2023.
^ Joseph W. Dellapenna & Joyeeta Gupta, The Evolution of the Law and Politics of Water 29 (2009).
^ Paul Du Plessis, Borkowski's Textbook on Roman Law 82 (2015).
^ John Stewart Bowman, Columbia Chronologies of Asian History and Culture 133 (2013).
^ Gary Stein, Expanding as per the Process Rights of Indigent Litigants: Will Texaco Trickle Down?, 61 N.Y.U.L. Rev. 463, 487-88 (1986) (internal quotation marks omitted).
^ See Peter D. Marshall, A Comparative Analysis of the Right to Appeal, 22 Duke J. of Comp. & Int. L. 1, 1 (2011) ("The right to appeal is a comparatively recent addition to the common law criminal process.")
^ Stan Keillor, Should Minnesota Recognize A State Constitutional Right to A Criminal Appeal?, 36 Hamline L. Rev. 399, 402 (2013)
^ ^a ^b ^c ^d ^e Orfield, Lester B. (1936). "History of Criminal Appeal in England". Missouri Law Review. 1 (4). Columbia: University of Missouri School of Law: 326–338. Retrieved 28 April 2020.
^ Daniel John Meador and Jordana Simone Bernstein, Appellate Courts in the United States 7 (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, 82 U. Cin. L. Rev. 831, 836 (2014) (discussing history of federal circuit courts).
^ 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, 82 U. Cin. L. Rev. 831, 836 (2014).
^ Daniel John Meador and Jordana Simone Bernstein, Appellate Courts in the United States 7 (1994).
^ Arthur D. Hellman, "The Law of the Circuit" Revisited: What Role for Majority Rule?, 32 S. Ill. U. L.J. 625 (2008); see also Fed. R. App. P. 35(a).
^ Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., conc.).
^ Rebecca A. Cochran, Gaining Appellate Review by "Manufacturing" A Final Judgment Through Voluntary Dismissal of Peripheral Claims, 48 Mercer 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).
^ Debra Lyn Bassett, "I Lost at Trial - in the Court of Appeals!": The Expanding Power of the Federal Appellate Courts to Reexamine Facts, 38 Hous. L. Rev. 1129, 1130 (2001); see also Pullman-Standard v. Swint, 456 U.S. 273, 291 (1982) ("[Factfinding] is the basic responsibility of district courts, rather than appellate courts ...") (internal citations and quotations omitted).
^ Debra Lyn Bassett, "I Lost at Trial - in the Court of Appeals!": The Expanding Power of the Federal Appellate Courts to Reexamine Facts, 38 Hous. L. Rev. 1129, 1130 (2001); cf. Leon Green, Judge and Jury 270 (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.")
^ 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).
^ See, e.g., United States v. Mendoza-Lopez, 481 U.S. 828 (1987).
^ See e.g. Sup. Ct. R. 10(a), available at Rules of the Supreme Court of the United States (2013).
^ Debra Lyn Bassett, "I Lost at Trial - in the Court of Appeals!": The Expanding Power of the Federal Appellate Courts to Reexamine Facts, 38 Hous. 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.").
^ See, e.g., Sup. Ct. R. 15, available at Rules of the Supreme Court of the United States (2013).
^ See, e.g., Sup. Ct. R. 37, available at Rules of the Supreme Court of the United States (2013).
^ See, e.g., Sup. Ct. R. 28, available at Rules of the Supreme Court of the United States (2013).
^ Sarah Levien Shullman, The Illusion of Devil's Advocacy: How the Justices of the Supreme Court Foreshadow Their Decisions During Oral Argument, 6 J. App. Prac. & Process 271 (2004).
^ See e.g. Sup. Ct. R. 41, available at Rules of the Supreme Court of the United States (2013).
^ "reversal". cornell.edu. Retrieved 14 October 2023.
^ "affirm". cornell.edu. Retrieved 14 October 2023.
^ Joan Steinman, Appellate Courts as First Responders: The Constitutionality and Propriety of Appellate Courts' Resolving Issues in the First Instance, 87 Notre Dame L. Rev. 1521, 1522 (2012).
^ 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).
^ James E. Pfander, Rethinking the Supreme Court's Original Jurisdiction in State-Party Cases, 82 Cal. L. Rev. 555, 555 (1994).
^ Joan Steinman, Appellate Courts as First Responders: The Constitutionality and Propriety of Appellate Courts' Resolving Issues in the First Instance, 87 Notre Dame L. Rev. 1521, 1542 (2012) (discussing role and function of intermediate appellate courts).
^ Gregory L. Acquaviva and John D. Castiglione, Judicial Diversity on State Supreme Courts, 39 Seton Hall L. Rev. 1203, 1205 (2009).

[1] See generally, Keenan D. Kmiec, The Origin & Current Meanings of "Judicial Activism", 92 Cal. L. Rev. 1441, 1442 (2004) (discussing contemporary discourse regarding judicial activism); Jonathan Mallamud, Prospective Limitation and the Rights of the Accused, 56 Iowa 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, 109 U. 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?, 36 Hamline L. Rev. 399, 402 (2013).

[Garner_Page_67-3] Garner, Bryan A. (2011). Garner's Dictionary of Legal Usage (3rd ed.). Oxford: Oxford University Press. p. 67. ISBN 9780195384208. Retrieved 10 September 2023.

[4] Joseph W. Dellapenna & Joyeeta Gupta, The Evolution of the Law and Politics of Water 29 (2009).

[5] Paul Du Plessis, Borkowski's Textbook on Roman Law 82 (2015).

[6] John Stewart Bowman, Columbia Chronologies of Asian History and Culture 133 (2013).

[7] Gary Stein, Expanding as per the Process Rights of Indigent Litigants: Will Texaco Trickle Down?, 61 N.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, 22 Duke 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?, 36 Hamline L. Rev. 399, 402 (2013)

[Orfield-10] Orfield, Lester B. (1936). "History of Criminal Appeal in England". Missouri Law Review. 1 (4). Columbia: University of Missouri School of Law: 326–338. Retrieved 28 April 2020.

[11] Daniel John Meador and Jordana Simone Bernstein, Appellate Courts in the United States 7 (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, 82 U. Cin. L. Rev. 831, 836 (2014) (discussing history of federal circuit courts).

[12] 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, 82 U. Cin. L. Rev. 831, 836 (2014).

[13] Daniel John Meador and Jordana Simone Bernstein, Appellate Courts in the United States 7 (1994).

[14] Arthur D. Hellman, "The Law of the Circuit" Revisited: What Role for Majority Rule?, 32 S. Ill. U. L.J. 625 (2008); see also Fed. R. App. P. 35(a).

[15] Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., conc.).

[16] Rebecca A. Cochran, Gaining Appellate Review by "Manufacturing" A Final Judgment Through Voluntary Dismissal of Peripheral Claims, 48 Mercer 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).

[17] Debra Lyn Bassett, "I Lost at Trial - in the Court of Appeals!": The Expanding Power of the Federal Appellate Courts to Reexamine Facts, 38 Hous. L. Rev. 1129, 1130 (2001); see also Pullman-Standard v. Swint, 456 U.S. 273, 291 (1982) ("[Factfinding] is the basic responsibility of district courts, rather than appellate courts ...") (internal citations and quotations omitted).

[18] Debra Lyn Bassett, "I Lost at Trial - in the Court of Appeals!": The Expanding Power of the Federal Appellate Courts to Reexamine Facts, 38 Hous. L. Rev. 1129, 1130 (2001); cf. Leon Green, Judge and Jury 270 (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.")

[19] 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).

[20] See, e.g., United States v. Mendoza-Lopez, 481 U.S. 828 (1987).

[21] See e.g. Sup. Ct. R. 10(a), available at Rules of the Supreme Court of the United States (2013).

[22] Debra Lyn Bassett, "I Lost at Trial - in the Court of Appeals!": The Expanding Power of the Federal Appellate Courts to Reexamine Facts, 38 Hous. 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.").

[23] See, e.g., Sup. Ct. R. 15, available at Rules of the Supreme Court of the United States (2013).

[24] See, e.g., Sup. Ct. R. 37, available at Rules of the Supreme Court of the United States (2013).

[25] See, e.g., Sup. Ct. R. 28, available at Rules of the Supreme Court of the United States (2013).

[26] Sarah Levien Shullman, The Illusion of Devil's Advocacy: How the Justices of the Supreme Court Foreshadow Their Decisions During Oral Argument, 6 J. App. Prac. & Process 271 (2004).

[27] See e.g. Sup. Ct. R. 41, available at Rules of the Supreme Court of the United States (2013).

[28] "reversal". cornell.edu. Retrieved 14 October 2023.

[29] "affirm". cornell.edu. Retrieved 14 October 2023.

[30] Joan Steinman, Appellate Courts as First Responders: The Constitutionality and Propriety of Appellate Courts' Resolving Issues in the First Instance, 87 Notre Dame L. Rev. 1521, 1522 (2012).

[31] 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).

[32] James E. Pfander, Rethinking the Supreme Court's Original Jurisdiction in State-Party Cases, 82 Cal. L. Rev. 555, 555 (1994).

[33] Joan Steinman, Appellate Courts as First Responders: The Constitutionality and Propriety of Appellate Courts' Resolving Issues in the First Instance, 87 Notre Dame L. Rev. 1521, 1542 (2012) (discussing role and function of intermediate appellate courts).

[34] Gregory L. Acquaviva and John D. Castiglione, Judicial Diversity on State Supreme Courts, 39 Seton Hall L. Rev. 1203, 1205 (2009).

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Appeal

Terminology

History

Appellate procedure

Appellate courts

See also

Notes

References

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