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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

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Chapter Topics

Nature of the Appellate Process

The Business of the Appellate Courts

Caseloads and ExpeditedProcessing 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
  • launching the appeal – the appellant (losing party in the lower court) must file a notice of appeal
  • preparing and transmitting the record – the papers and exhibits (e.g., transcript) are transferred from the lower court
  • 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
    • Modify
    • Reverse
    • Remand
    • 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 habeascorpus—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:
    • One year deadline for filing habeas petition
    • Limits successive positions
    • Restricts review of state petitioner claims
    • 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 home-state influence
  • Research concludes that all factors influence Circuit court judicial behavior


  • 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