Product Code Database
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).
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).
In most jurisdictions the normal and preferred way of seeking appellate review is by filing an appeal against the lower court's judgment.
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. 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. 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). Certiorari was originally available only for ; in the early 19th century, certiorari became available for indictable offences, but only to obtain relief before judgment. 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.
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) or an affirmation, in which the lower court's decision is found to be correct.
|
|
