Chapter Topics
Nature of the Appellate Process
The Business of the Appellate Courts
Caseloads and Expedited
Processing Techniques
Post-Conviction Remedies
Chapter Topics
Decision Making on Appellate Courts
Explaining Decision Making on
Appellate Courts Today
State Supreme Courts
U.S. Courts of Appeals
The Nature of the Appellate Process
• appellate courts subject the decision
of another court to a second look
• they focus on the legal controversy
rather than the facts in a case
• contributes to the legitimacy of the
legal system
• only a small number of cases decided
every year in trial courses will be
appealed
The Nature of the Appellate Process
• appeals courts are multimember
• intermediate courts of appeals
typically hear cases as 3 member panels
• occasionally they hear cases with all
members of the court, referred to as en
banc (can be as many as 28 judges)
• appellate cases present controversies
about the law and their decisions are
binding on all courts in their jurisdiction
The Purposes of Appeal
• error correction
• ensure the law was correctly applied during
trial
• policy formulation
• sometimes referred to as lawmaking
• happens when the court fills in gaps in the
law, clarifies doctrines, clarifies the law,
overturns previous decisions
Scope of Appellate Review
• the losing party at trial generally has
the right to one appeal
• only the losing party may file an appeal
• prosecutors may not appeal “not guilty”
verdicts – the Constitution protects
citizens from double jeopardy – being
prosecuted twice for the same crime
Scope of Appellate Review
• appeals are discretionary (except
capital punishment cases) – most losing
litigants will not file an appeal
• appeals must be from final judgments
• focus on questions of law not fact
• issues appealed must have been raised
during the trial (objections during the
trial)
Scope of Appellate Review
• the losing party only has a right to one
appeal
• appeals courts have:
• mandatory jurisdiction over some
matters (these are cases they are required to
hear)
• discretionary jurisdiction (the court may
pick and choose which cases it will hear)
Appellate Court Procedures
•
there are six general steps
1) launching the appeal – the appellant (losing party in
the lower court) must file a notice of appeal
2) preparing and transmitting the record – the papers
and exhibits (e.g., transcript) are transferred from the
lower court
3) writing and filing briefs – a brief is the written
argument stating why one side should win. The
appellant files a brief and then the appellee (or
respondent) files, following by an another opportunity
for the appellant.
Appellate Court Procedures
4) Oral Argument – the lawyers for both parties are given
an opportunity to argue their case before the judges.
Lawyers present their case and judges ask questions.
5) Writing the Opinion – after the case has been decided
the judges will decide the case, writing an opinion
which summarizes the facts an explains the legal
issues and the basis of the decision. Judges who
disagree may write a dissenting opinion – explaining
why they disagree with their fellow judges.
6) Disposing of the case – the appellate court may affirm
(uphold) the lower court judgment, modify (change
part of the ruling, or reverse it (set aside).
Sometimes they will remand the case (send it back to
the lower court with instructions).
Appellate Court Procedures
• Appellate courts
a) Modify
b) Reverse
c) Remand
d) Reverse and Remand…
• Only when there is error at the trial level
• Substantial error is reversible
• Trivial errors is deemed harmless
The Business of Appellate Courts
• Appellate courts have limited original
jurisdiction (e.g., appeals from
administrative agencies)
• Most cases come on appeal (e.g.,
reviewing a lower court decision)
• Most trial court filings are never
appealed because the parties reach
mutually agreeable, voluntary
settlement
Civil Appeals
• Three facts drive the decision to file an
appeal
1) how much litigants have lost in the
lower court – high stakes cases are
appealed more frequently
2) likelihood of success
3) financial considerations – appeals
are expensive
Civil Appeals
• A substantial number of appeals are
filed every year
• In federal court civil appears are more
likely to be reversed (12%) than
criminal (6%)
• Research has been conducted that
shows resources (financial, legal) may
matter at the appeals stage
Criminal Appeals
• Indigents defendants have a right to
appeals because of Warren Court
decisions in the 60s
• Today criminal appeals constitute
about 50% of all appeals
• Criminal appeals are a) relatively
homogenous, b) largely routine, c)
rarely successful, d) those who are
successful are likely to be the least
serious offenses
Caseloads and Expedited Processing
Techniques
• After World War II the appellate
caseload grew dramatically
• There has also been a shift in the type
of cases—today they are much more
complex than those of previous
decades
• The response has been to increase
resources (more courts/judges) and
improve efficiency
Increasing Resources
• The first response was to create
intermediate courts of appeals and
additional judgeships
• Create additional staff for judges (e.g.
law clerks), who can do some of the
routine work
• No guarantee that increasing
resources will result in less delay
Improving Efficiency
• Assumes that all cases are not the
same, some can be handled quickly
(e.g., routine, hopeless, frivolous),
while others require a time consuming
review (as few as 10%)
• Some argue for eliminating oral
argument
• Issue summary affirmations—affirms
lower court ruling with offering an
opinion
Improving Efficiency
• Generate unpublished opinions—has
the benefit of reducing workload and
concern over the amount of law one
must study to become a lawyer
• Another reform effort focuses on
settlement conferences--which focus
on creating policy
• Settlement conference help the parties
reach mutually agreeable positions
Post Conviction Remedies
• After the appeals process is over
federal prisoners may challenged their
convictions by filing a lawsuit (e.g.,
collateral attacks)
1) Differ from appeals because they
can only be filed by prisoners
2) limited to constitutional defects
3) not limited by issues raised at trial
4) are unlimited in number
Habeas Corpus Relief
• Post conviction remedies are referred
to as habeas corpus—an order to
someone holding a person to bring
that person before the court.
• Protected by Article I of the U.S.
Constitution, often described as the
“great writ”
• Prevents government from jailing
citizens without filing charges
Habeas Corpus Relief
Expanding and Contracting the Great
Writ
• Originally seen as an extraordinary
effort
• Warren Court (1960s) expanded the
scope of habeas corpus
•
1960 – 2,000 petitions
•
1996 – 68,000 petitions
• Recent court have cut back on habeas
relief
Habeas Corpus Relief
Expanding and Contracting the Great
Writ
• seen as an extraordinary effort
• Warren Court (1960s) expanded the
scope of habeas corpus
•
1960 – 2,000 petitions, 1996 – 68,000 petitions
• Recent Courts have cut back on
habeas relief, petitioners are rarely
successful (2%)
Restricting Federal Habeas Corpus
• 1996 Antiterrorism and Effective Death
Penalty Act does:
1) One year deadline for filing habeas petition
2) Limits successive positions
3) Restricts review of state petitioner claims
4) Requires a “certificate of appealability”
• Limits on habeas challenged but
Supreme Court upheld law
• Lengthy review process is seen by
some as soft on crime
Decision Making on Appellate Courts
• Decision of court may be reviewable by
another level of courts
• Decisions are made by groups of
judges
• Political scientists have focused a great
deal of energy on trying to explain
appellate court decision making
• A large number of appellate decisions
are non-unanimous
Decision Making on Appellate Courts
• Non-unanimous decisions are
interesting to study because there is
disagreement about the law across
judges who are looking at the same
case
• Disagreement happens on all courts:
The Supreme Court, courts of appeals
and State Supreme Courts
• Political scientists offer four ways to
explain decision making
Legal Factors
• The legal model asserts that judges
make decisions primarily based on the
facts of the case, the legal statutes
involved and the controlling legal
precedent (stare decisis)
• Advocates argue the law cannot be the
only factor because otherwise all
judges would reach the same decision
•
the law is often contradictory
Attitudinal Dimensions
• Advocates argue that judges are
similar to other policy makers
• Votes are one way to express their
views about politics and society
• Advocates focus on judges’ ideologies
and their values to explain decisions
Institutional Differences
• Advocates argue that the format of
multi-member judicial panels affects
decision making
• Small groups make decisions
differently than individuals
• An individual judge may moderate
their views to reach agreement with
others on the panel
Strategic Differences
• This approach assumes that judges act
on their attitudes in a sophisticated
way
• Their goal is to get the most preferred
outcome in this particular case, but
also to try and influence the law in
later cases
• A strategic judge may give up their
position in a less preferred legal
matter to get support later
State Supreme Courts
• Decide 25,000 cases a year
• Most decisions will be the final word
(very few are reviewed by the
Supreme Court)
• Engage primarily in error correction,
but increasingly they are involved in
policy formulation
• An increasing focus on their decisions
Legal Factors and State Supreme Courts
• Decisions based on state constitutional
law
• State constitutions are typically longer
than the U.S. Constitution
• New Judicial Federalism refers to the
movement in state courts to use State
Constitutions as sources of individual
rights (in contrast to using the U.S.
Constitution)
Attitudinal Dimensions of Voting
• There is frequently disagreement
among judges on State Supreme
Courts
• Factors to explain this disagreement
include partisan attitudes, religion,
gender, age, race, pre-judicial career,
etc.
• Some cases leave little room for
judges’ policy preferences to have an
impact (i.e., the law is clear)
Institutional Differences
• The legal and political contexts of state
supreme courts varies considerably
• Rules and operating procedures are
different across the states
• Important differences include: judicial
voting order, opinion assignment,
control over their dockets
(discretionary v. mandatory
jurisdiction)
Strategic Considerations
• These models include legal, attitudinal
and institutional factors
• Institutional factors include such forces
as whether the judges have prior
representative service, whether they
are from single member districts and
whether the case is heard near the
beginning or end of their term
• Models show a complex decision
making process
U.S. Courts of Appeals
• A new focus on courts of appeals
judges and their decisions
• Decisions set the contours of law and
policy
• Most of their decisions will not be
reviewed by the Supreme Court
• Determine precedent in their
respective circuits
Legal Factors and Courts of Appeals
• Decide over 60,000 cases a year
• Most cases generate unanimous
decisions
• Studies have demonstrated that
precedent (i.e., the law) is important
in case outcomes
• Judges are obligated to apply the
precedent established by the Supreme
Court
Attitudinal Dimensions of Voting
• Sheldon Goldman (1966) concluded
that Republican judges tend to be
more conservative than their
Democratic colleagues
• Research shows that Democratic
presidents appoint different types of
judges than Republicans
• Judges appointed by Democrats render
a greater percentage of liberal
decisions
Institutional Differences
• The 13 circuit courts of appeals are
separated geographically
• Research shows different ideological
and policy environments across the
circuits
• The composition of the three-judge
panels is constantly changing
• The relationship of panels to the views
of the full circuit varies (en banc
review)
Strategic Considerations
• New research on the Courts of Appeals
applies, legal, attitudinal, and
institutional models to explain
decision-making
• Studies have looked at a) when en
banc review is granted, whether panel
judges write separately, the homestate influence
• Research concludes that all factors
influence Circuit court judicial behavior
Conclusion
• Appellate courts review the decisions
of lower courts
• Appellate court caseloads have been
increasing rapidly
• Primarily engaged in error correction
but also involved in policy making
• Decision making is a complex
combination of legal, attitudinal,
institutional and strategic factors