From Encyclopedia of Social Science (2001 edition)
An appeal is a proceeding in a higher court of law initiated by a party contending that a decision of a subordinate court is erroneous. Appeal is to be distinguished from other proceedings sometimes initiated in high courts for purposes other than the correction of error by a subordinate court. It is also to be distinguished from review proceedings conducted without regard for any previous disposition by the subordinate court, as where a case is subjected to trial de novo in the higher court. The latter form of proceeding is, for example, standard practice at the first level of review in Germany (Meador, Rosenberg & Carrington 893-979). It is not unknown in the United States, where its use is most common when a higher court is reviewing a small claims court where professional lawyers seldom represent the parties and where the judge is sometimes non-professional. Appeal is also to be distinguished from the discretionary review that may be observed in the Supreme Court of the United States and most other highest courts of states or of large nations. A court performing discretionary review may select the issues or rulings that it chooses to review; its primary purpose in making its selection is to explain the correct resolution of issues that are likely to recur in the lower courts or are otherwise important to persons other than those who are parties. In the United States and in many other countries, most appeals are taken to intermediate courts that are subject to discretionary review in courts of last resort. This article is an account only of the principles governing such appeals, primarily in the intermediate courts of the United States. Some variations in other systems will be noted, but those variations are so numerous that they defy synthesis.
1. Not Universal
The appeal is not a universal feature of legal systems. Some tribal courts, for example, bring to bear in the first instance most of the wisdom and authority of the community. (See, e.g., Gluckman) There is then no body of higher persons to whom an appeal might appropriately be addressed. Also, there are autocratic systems, generally those having strong religious roots, in which an individual chief, priest or judge is afforded the power of decision without possibility of review. Islamic law is noted as an example; the kadi administers an elaborate code of conduct contained in holy writ that no mere lawyer can presume to interpret, and the kadi’s decision was not subject to review. (Shapiro).
The appeal as it is known in western legal systems appears to have been devised by the early Byzantine empire and rested on the idea that all power was a delegation from the emperor. (Pound) It was reinvented in the 12th century as a method of centralizing power and was used for that purpose by French monarchs as early as the 13th century. For similar reasons, the appeal was used intensively in socialist legal systems patterned on the Soviet model. (Damaska 48-52) Its use in the United States reflects the different reality that trial courts there enjoy a measure of political autonomy and are supported by the politically important institution of the local jury, so that the appeal is needed to correct for the tendency of American law to be diffuse.
Typically, in those systems using an appeal, the review is conducted by a larger bench of judges than the court whose judgment is under review. In the United States, there is almost without exception a single judge presiding over a trial court from whose decisions an appeal may be taken to a three-judge court. Judges sitting on an appellate court are generally designated as persons of higher rank, and are likely to receive marginally higher salaries than judges sitting on the trial courts they review.
Even in the United States, the right of appeal in a civil case is generally a matter of legislative grace. Until 1888, there was no appeal from a criminal conviction in a federal court, even if the convicted person was subject to capital punishment. (Frankfurter & Landis). However, the constitutions of some states have long guaranteed the right of appeal in criminal cases. It is still the law in all American jurisdictions that a state may not appeal a judgment of acquittal in a criminal case because a second trial would place the defendant in double jeopardy of conviction. Where there is no right to appeal, trial judges were seen to accumulate excessive discretionary power over the individuals engaged in disputes brought before them and on occasion to engage in seemingly lawless behavior. The Congress of the United States and state legislatures have in this century been attentive to the importance of constraining that discretionary power and have provided for appellate review in civil cases and in criminal cases not resulting in judgments of acquittal.
2. Principles of Restraint
The development of the appeal in American courts has resulted in the formulation of principles of restraint that are also in use in various forms in other legal systems. The institution described here is analogous to the writ of error familiar to ancient practice of English common law courts as an instrument for bringing a local one-judge decision to the attention of the larger court sitting in Westminster, but departs from that usage in important respects. Contemporary American practice took its present form in the federal and in the courts of the states over the course of the 19th century. Six principles of restraint emerged.
2.1 Reversible Error: The Adversary Tradition
The first of these is the concept of error, a principle rooted in the Anglo-American adversary tradition placing primary responsibility for the conduct of litigation on the parties and their counsel. Because the burden is on the parties to present the evidence and inform the court of their claims or defenses, it is not generally error for a court to fail to identify a fact not proven or to fail to enforce a legal principle not invoked. The political function of this principle is to reduce the profile of the court: disappointed parties often share responsibility for their own defeats. The administrative purpose of the principle is to encourage thorough preparation and presentation of the case by counsel and to protect the court from being trapped by deceitful or negligent counsel. It follows from this principle of reversible error that an appellant, to be successful on appeal, must generally point to a ruling made by the lower court to which the appellant made timely objection (Tigar & Tigar). In times past, it was often required not only that there be an objection to the erroneous ruling, but that an appellant have taken exception to the adverse ruling, thus putting the trial judge on notice that the ruling may be challenged on appeal. The requirement of an exception has been eliminated from the practice of federal and most state courts.
Even in American courts, the requirement of a timely objection is sometimes disregarded for erroneous rulings so egregious that the judgment under review deeply offended the appellate court’s sense of propriety. Such errors are denoted as plain errors. Rarely is the plain error doctrine invoked because it allows counsel to proceed in a no-lose situation, knowing that if the error is not corrected by the trial judge there will be a successful appeal affording a non-objecting party with a fresh start. On the other hand, appellate courts may be reluctant to punish a party having a clearly meritorious claim or defense for no reason other than a lapse on the part of counsel.
2.2 Harmless Error
A second and more universal requirement is that no error however egregious is an occasion for reversal unless it was consequential. The familiar expression is that a harmless error is not reversible. Thus, an appellant who should and would have lost on other grounds cannot secure relief from an adverse judgment even if that party can identify blatant errors of fact or of law that were committed by the court below.
2.3 Standing to Appeal
A third requirement is standing to appeal. This principle is related to that just stated. Generally, only a party who has participated in the proceeding is bound by the decision below. Hence, one who was not a party is not directly harmed by a judgment even though he or she may strongly disapprove of the outcome and affirm that a grave injustice has been done. The requirement of standing may be extended to bar appeal by non-parties who are only remotely affected by a judgment. Thus an investor or employee lacks standing to appeal a judgment rendered against a corporation in which he or she owns shares or by which he or she is employed. The decision to appeal a judgment rendered against a corporation resides with the corporate directors acting on the advice of the officers, and to no one else.
2.4 Ripeness for Review
A fourth common requirement is that of ripeness for review. In general, an appeal is premature until a final decision has been reached in the court below. This is a principle of economy. An error of the lower court may turn out to be harmless; the higher court cannot know until a final decision has been reached. Moreover, there would be serious diseconomies in allowing every litigant adversely affected by a provisional ruling of a trial court to take an appeal at once. Not only would this afford parties a means of imposing needless financial costs on adversaries, but it would force the trial court or perhaps even the appellate court to decide in each instance whether the lower court proceedings should be stayed pending the outcome of the appeal. If a stay is granted, the appellant has been empowered to delay the proceeding; and the delay itself may often result in injustice. If a stay is denied, there is the risk that further proceedings will be set aside as a result of the interlocutory decision of the higher court.
There are in most jurisdictions numerous exceptions to the ripeness requirement. For example, in the federal practice, an interlocutory appeal may be taken from the grant or denial of a preliminary injunction for the reason that an error in such a ruling can have grave consequences for the party adversely affected. (Steinman 1388-1476). Immediate appeal may also be allowed with respect to other rulings involving substantial procedural rights that are very likely to affect the outcome of a case. With respect to important issues of judicial administration, it may be said that an otherwise unripe appeal should be entertained in order to sustain the supervisory power of the appellate court, i.e., to prevent lawless behavior by a trial judge. An appellate court in the United States will also generally possess the power to issue an extraordinary writ such as a writ of mandamus (a tool of Roman origins) to forestall an abuse of discretion by a subordinate court. In addition, a lower court may be permitted to certify to a higher court a question of law to which the lower court has no answer and which is central to a lengthy trial. And in New York state courts, a ripeness requirement is itself an exception to the more general rule that a party aggrieved by a ruling of the trial division can seek prompt review in the appellate division of the same court.
2.5 The Record on Appeal
A fifth concept shared by all American and most other jurisdictions is that of the record on appeal. That is an official account of the proceedings below, or at least that part of the official account that the lawyers deem pertinent to the issues raised on appeal and therefore worth the cost of reproduction. The record is generally produced by the clerk of the court below and will contain documents filed with the court and a transcript of any oral proceedings prepared by a professional court reporter. In general, an appellate court will not consider information that is not contained in the record (Marvell 160-166). There is an exception to this principle generally known as the judicial notice doctrine. A court may without proof take notice of common knowledge not contained in the record, or knowledge that is readily available to all, such as the coincidence of days of the week with days of the month. In a civil case, the appellant must generally advance the cost of preparing such a record, but a state may be required to bear the cost in a criminal case if the convicted person is indigent.
2.6 Deferential Review of Factual Determinations
Finally, there is a principle of deference to trial courts. Among the aims of this principle are to dignify the proceedings below and to discourage appeals challenging the guesswork inevitably done in the trial court to resolve issues on which there is conflicting evidence. The principle is expressed in an elusive distinction between law and fact. It is generally agreed that trial courts are entitled to no deference in their rulings on questions of law. Such rulings may be embodied in the instructions on the law given to a jury, or if there is no jury demanded, in the conclusions of law stated by the court to explain its disposition. An erroneous statement in either of those utterances of the trial judge is a sufficient ground for reversal. On the other hand, trial courts having dealt directly with the evidence submitted by the adversaries are extended the benefit of some doubt with respect to the determinations of fact. The appellate court hears no witnesses and sees only a transcript of the testimony. If the trial court judgment rests on a jury verdict, the factual determination in a civil case can be reversed on appeal only if the appellate court finds that there is no substantial evidence in the record to support it. In the absence of a jury, a trial judge’s decision on evidence will in a civil case be expressed in the judge’s finding of facts; such findings may be reversed in American courts only if the reviewing court finds “clear error.” It is generally assumed that the latter is a lower standard and that fact finding by a judge is more closely scrutinized on appeal than is fact finding by a jury.
The distinction between fact and law is subtle and even sometimes circular; a much oversimplified summary is that issues of fact are those involving specific past events about which there is doubt, whose resolution has little or no bearing on future cases. Issues of law are typically those involving an interpretation of legal texts, but it is often said that whether there is evidence sufficient to support a jury verdict is itself a question of law. All this really means is that sufficiency of the evidence is a question in the first instance for the trial judge but that the ruling on the issue will be reviewed without deference. It is therefore not wrong to say that an issue of fact is simply one that the courts leave for decision by a trier of fact while an issue of law is any issue that the appellate court chooses to decide on its own.
A homely example may assist understanding of this professional jargon. A farmer seeks compensation from the railroad adjoining his farm for a cow hit and killed by the train. The controlling law is that the railroad has a duty to fence livestock out of its right-of-way. But it allows the farmer to keep a gate in the fence. If the cow went through a hole in the fence, the railroad is responsible; if she went through the gate, it is not. If the accident happened at a spot equidistant to the gate and a hole in the fence, convention would say that there was substantial evidence from which a trial court might infer that the railroad’s negligence probably caused the misfortune. If, however, the accident occurred near the gate and a long distance from the hole in the fence, it would be unreasonable to infer that the cow probably came through the hole and not the gate. Convention would then say that there is no substantial evidence to support a jury verdict for the farmer; that such a decision by a judge sitting without a jury would be clear error; and that as a matter of law the railroad has no liability. How close to the gate and how far from the hole the accident must be in order for the case to present an issue of fact for a jury to decide is itself a question of law.
This distinction is not made in some other legal systems. It is unknown to Japanese practice modeled on the French. It is generally less useful in systems placing heavy reliance on written submissions of evidence. In such systems, the appellate court has access to the same information as the trial court, and hence there is less reason for deference to the judicial officer who saw and heard the adversary presentation of the parties.
2.7 Abuse of Discretion
Notwithstanding these settled principles of restraint, an appellate court is also empowered to correct actions of a trial judge that it deems to be an abuse of discretion. This principle is most frequently invoked to challenge and correct procedural rulings that are seen to be idiosyncratic or manifestly unjust (Friendly).
3. Appellate Procedure
In addition to these principles of appellate jurisdiction, American courts share a traditional procedure that is replicated in many legal systems. Until about 1960, this process was universal in the United States and included (1) the submission of written briefs prepared by counsel on both sides that present their legal arguments and provide citations to pertinent legal texts and authorities; (2) an oral argument at which counsel might engage the appellate judges in dialogue and answer questions they might pose; (3) a conference of the judges responsible for the appellate decision, and (4) a published opinion of the court explaining the legal principles underlying the disposition on appeal. These procedural amenities have since been foreshortened in most American appellate courts, especially since the number of criminal appeals has increased precipitously in recent decades, many of them raising no serious issue worthy of the effort to conduct oral argument, confer, and write an opinion. It has also become common, especially in federal appellate courts, for much of the responsibility to be delegated to law clerks serving as members of the judges’ staffs. In recent years, it has been argued that the right of appeal should be abolished in federal practice in recognition of the reality that many appeals are never seriously studied by the judges commissioned as members of the court (E.g, Parker & Chapman). Others have resisted this trend (Arnold). It has even been contended that the erosion of appellate procedure has diminished the raison d’etre of the federal appellate courts (Carrington 2000). This is an aspect of judicial administration that is likely to be profoundly affected by electronic communications (Carrington 1998).
4. The Opinion of the Court
English appellate courts have since ancient times favored oral opinions delivered separately by each appellate judge in immediate response to the oral argument. (Meador, Rosenberg & Carrington 751-892). This method has the virtue of accelerating the decision, but it is less instructive to lower courts and citizens expected to obey the utterances of the court. The American concept of the opinion of the court is an invention of John Marshall as Chief Justice of the Supreme Court of the United States. Before his time, American appellate judges like their English forebears rendered their decisions orally from the bench after oral argument and without conferring among themselves. The opinion of the court is most useful for courts of last resort having the duty of explaining legal texts not only to subordinate judges and other officials, but also to citizens expected to obey the law and conform their behavior to its requirements. Out of the practice of publishing opinions of the court comes the understanding that American courts “make law.” In many other legal systems, such opinions of the court are not prepared and published, or if prepared are presented in such summary and didactic form that they shed little illumination on the meaning of the legal texts cited. In countries adhering to that practice it is seldom said that courts make law.
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