In law, an appeal is the process in which Legal case 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.[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").] 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.[Stan Keillor, Should Minnesota Recognize A State Constitutional Right to A Criminal Appeal?, 36 Hamline L. Rev. 399, 402 (2013).]
Terminology
American English and
British English have diverged significantly on the topic of appellate terminology.
American cases go up "on appeal" and one "appeals from" (intransitive) or "appeals" (
Transitive verb) an order, award, judgment, or conviction, while decisions of British courts are said to be "under appeal" and one "appeals against" a judgment.
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).
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.
[Joseph W. Dellapenna & Joyeeta Gupta, The Evolution of the Law and Politics of Water 29 (2009).] 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
roman emperor.
[Paul Du Plessis, Borkowski's Textbook on Roman Law 82 (2015).] 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.
[John Stewart Bowman, Columbia Chronologies of Asian History and Culture 133 (2013).]
Although some scholars argue that "the right to appeal is itself a substantive liberty interest",[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).] the notion of a right to appeal is a relatively recent advent in common law jurisdictions.[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.")] Commentators have observed that common law jurisdictions were particularly "slow to incorporate a right to appeal into either its civil or criminal jurisprudence".[Stan Keillor, Should Minnesota Recognize A State Constitutional Right to A Criminal Appeal?, 36 Hamline L. Rev. 399, 402 (2013)]
The idea of an appeal from court to court (as distinguished from court directly to the Crown) was unheard of in early English courts.
Appellate procedure
Although some courts permit appeals at preliminary stages of
litigation, most litigants appeal final orders and judgments from lower courts.
[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, "appeals 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).] 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.
[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, ("Factfinding is the basic responsibility of district courts, rather than appellate courts ...") (internal citations and quotations omitted).] Instead, appellate courts will generally defer to the record established by the
trial court, unless some error occurred during the fact-finding process.
[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) ("Those 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.")] Many
jurisdictions provide a
statutory or constitutional right for litigants to appeal adverse decisions.
[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).] However, most jurisdictions also recognize that this right may be
waiver. In the United States, for example, litigants may waive the right to appeal, as long as the waiver is "considered and intelligent".
[See, e.g., United States v. Mendoza-Lopez, .]
The appellate process usually begins when an appellate court grants a party's petition for review or petition for certiorari.[See e.g. Sup. Ct. R. 10(a), available at Rules of the Supreme Court of the United States (2013).] Unlike trials, which many common law jurisdictions typically perform with a jury, appeals are generally presented to a judge, or a panel of judges.[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.").] Before hearing oral argument, parties will generally submit in which the parties present their arguments at length in writing.[See, e.g., Sup. Ct. R. 15, available at Rules of the Supreme Court of the United States (2013).] Appellate courts may also grant permission for an amicus curiae to submit a brief in support of a particular party or position.[See, e.g., Sup. Ct. R. 37, available at Rules of the Supreme Court of the United States (2013).] After submitting briefs, parties often have the opportunity to present an oral argument to a judge or panel of judges.[See, e.g., Sup. Ct. R. 28, available at Rules of the Supreme Court of the United States (2013).] During oral arguments, judges often ask questions to Lawyer to challenge their arguments or to advance their own legal theories.[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).] After deliberating in chambers, appellate courts issue formal written opinions that resolve the legal issues presented for review.[See e.g. Sup. Ct. R. 41, available at Rules of the Supreme Court of the United States (2013).]
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)
Appellate courts
When considering cases on appeal, appellate courts generally affirm, reverse, or
Vacated judgment the decision of a lower court.
[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).] Some courts maintain a dual function, where they consider both appeals and matters of "first instance".
[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).] For example, the Supreme Court of the United States primarily hears cases on appeal but retains original jurisdiction over a limited range of cases.
[James E. Pfander, Rethinking the Supreme Court's Original Jurisdiction in State-Party Cases, 82 Cal. L. Rev. 555, 555 (1994).] Some jurisdictions maintain a system of intermediate appellate courts, which are subject to the review of higher appellate courts.
[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).] The highest appellate court in a jurisdiction is sometimes referred to as a "court of last resort" or supreme court.
[Gregory L. Acquaviva and John D. Castiglione, Judicial Diversity on State Supreme Courts, 39 Seton Hall L. Rev. 1203, 1205 (2009).]
See also
Notes
