In law, an appeal is the process in which cases are reviewed, 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]
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.[3] Ancient Roman law employed a complex hierarchy of appellate courts, where some appeals would be heard by the emperor.[4] Additionally, appellate courts have existed in Japan since at least the Kamakura Shogunate (1185–1333 CE). During this time, the Shogunate established hikitsuke, a high appellate court to aid the state in adjudicating lawsuits.[5] In the Eighteenth century, William Blackstone observed in his Commentaries on the Laws of England that appeals existed as a form of error correction in the common law during the reign of Edward III of England.[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] In fact, commentators have observed that common law jurisdictions were particularly "slow to incorporate a right to appeal into either its civil or criminal jurisprudence".[9] For example, the United States first created a system of federal appellate courts in 1789,Template:NoteTag 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.[10] Two years later, the right to appeals was extended to other criminal cases, and the United States Courts of Appeals were established to review decisions from district courts.[11] Some states, such as Minnesota, still do not formally recognize a right to criminal appeals.[12]
Appellate procedure[]
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Although some courts permit appeals at preliminary stages of litigation, most litigants appeal final orders and judgments from lower courts.[13] 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.[14] Instead, appellate courts will generally defer to the record established by the trial court, unless some error occurred during the fact-finding process.[15] Many jurisdictions provide a statutory or constitutional right for litigants to appeal adverse decisions.[16] 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".[17]
The appellate process usually begins when an appellate court grants a party's petition for review or petition for certiorari.[18] Unlike trials, appeals are generally presented to a judge, or a panel of judges, rather than a jury.[19] Before making any formal argument, parties will generally submit legal briefs in which the parties present their arguments.[20] Appellate courts may also grant permission for an amicus curiae to submit a brief in support of a particular party or position.[21] After submitting briefs, parties often have the opportunity to present an oral argument to a judge or panel of judges.[22] During oral arguments, judges often ask question to attorneys to challenge their arguments or to advance their own legal theories.[23] After deliberating in chambers, appellate courts will issue formal opinions that resolve the legal issues presented for review.[24]
Appellate courts[]
- Main article: Appellate court
When considering cases on appeal, appellate courts generally affirm, reverse, or vacate the decision of a lower court.[25] Some courts maintain a dual function, where they consider both appeals as well as matters of "first instance".[26] For example, the Supreme Court of the United States primarily hears cases on appeal but retains original jurisdiction over a limited range of cases.[27] Some jurisdictions maintain a system of intermediate appellate courts, which are subject to the review of higher appellate courts.[28] The highest appellate court in a jurisdiction is sometimes referred to as a "court of last resort".[29]
See also[]
- Civil procedure
- List of legal topics
- Judicial review
- Appellate procedure in the United States
- Scope of review
Notes[]
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References[]
- ↑ See generally, Keenan D. Kmiec, The Origin & Current Meanings of "Judicial Activism", 92 Template:Smallcaps 1441, 1442 (2004) (discussing contemporary discourse regarding judicial activism); Jonathan Mallamud, Prospective Limitation and the Rights of the Accused, 56 Template:Smallcaps 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 Template:Smallcaps 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 Template:Smallcaps 399, 402 (2013).
- ↑ Joseph W. Dellapenna & Joyeeta Gupta, Template:Smallcaps 29 (2009).
- ↑ Paul Du Plessis, Template:Smallcaps 82 (2015).
- ↑ John Stewart Bowman, Template:Smallcaps 133 (2013).
- ↑ Template:Smallcaps, the Third - Chapter the Twenty-Fifth: Of Proceedings, In the Nature of Appeals.
- ↑ Gary Stein, Expanding as per the Process Rights of Indigent Litigants: Will Texaco Trickle Down?, 61 Template:Smallcaps 463, 487-88 (1986) (internal quotation marks omitted).
- ↑ See Peter D. Marshall, A Comparative Analysis of the Right to Appeal, 22 Template:Smallcaps 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 Template:Smallcaps 399, 402 (2013)
- ↑ Act of February 6, 1889, ch. 113, § 6, 25 Stat. 656, 656.
- ↑ Mar. 3, 1891, ch. 517, § 5; 26 Stat. 826, 827-28.
- ↑ 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?, 36 Template:Smallcaps 399, 401-02 (2013) ("[S]aying 'there is no constitutional right to appeal' in criminal cases is a shibboleth").
- ↑ Rebecca A. Cochran, Gaining Appellate Review by "Manufacturing" A Final Judgment Through Voluntary Dismissal of Peripheral Claims, 48 Template:Smallcaps 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, Template:Ussc ("[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, Template:Smallcaps 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 February 6, 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, Template:Ussc.
- ↑ 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).
- ↑ Joan Steinman, Appellate Courts as First Responders: The Constitutionality and Propriety of Appellate Courts' Resolving Issues in the First Instance, 87 Template:Smallcaps 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).