In law, an appeal is the process in which cases 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. Although appellate courts have existed for thousands of years,

common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...

countries did not incorporate an affirmative right to appeal into their jurisprudence until the 19th century.

Terminology

American English American English, sometimes called United States English or U.S. English, is the set of variety (linguistics), varieties of the English language native to the United States. English is the Languages of the United States, most widely spoken lang ...

and

British English British English is the set of Variety (linguistics), varieties of the English language native to the United Kingdom, especially Great Britain. More narrowly, it can refer specifically to the English language in England, or, more broadly, to ...

have diverged significantly on the topic of appellate terminology. American cases go up "on appeal" and one "appeals from" ( intransitive) or "appeals" ( transitive) 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).

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. Ancient Roman law recognized the right to appeal in the Valerian and Porcian laws since 509 BC. Later it employed a complex hierarchy of appellate courts, where some appeals would be heard by the

emperor The word ''emperor'' (from , via ) can mean the male ruler of an empire. ''Empress'', the female equivalent, may indicate an emperor's wife (empress consort), mother/grandmother (empress dowager/grand empress dowager), or a woman who rules ...

. Additionally, appellate courts have existed in Japan since at least the Kamakura shogunate (1185–1333). During this time, the shogunate established ', a high appellate court to aid the state in adjudicating lawsuits. Although some scholars argue that "the right to appeal is itself a substantive liberty interest", the notion of a right to appeal is a relatively recent advent in common law jurisdictions. Commentators have observed that common law jurisdictions were particularly "slow to incorporate a right to appeal into either its civil or criminal jurisprudence". 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 A writ of ''coram nobis'' (also writ of error ''coram nobis'', writ of ''coram vobis'', or writ of error ''coram vobis'') is a legal order allowing a court to correct its original judgment upon discovery of a fundamental error that did not appear i ...

and

certiorari In law, ''certiorari'' is a court process to seek judicial review of a decision of a lower court or government agency. ''Certiorari'' comes from the name of a prerogative writ in England, issued by a superior court to direct that the recor ...

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 In most common law jurisdictions, the attorney general (: attorneys general) or attorney-general (AG or Atty.-Gen) is the main legal advisor to the government. In some jurisdictions, attorneys general also have executive responsibility for law enf ...

(which was initially discretionary but by modern times was regularly granted). Certiorari was originally available only for

summary offence A summary offence or petty offence is a violation in some common law jurisdictions that can be proceeded against summarily, without the right to a jury trial and/or indictment (required for an indictable offence). Canada In Canada, summary offe ...

s; in the early 19th century, certiorari became available for

indictable offence In many common law jurisdictions (e.g. England and Wales, Ireland, Canada, Hong Kong, India, Australia, New Zealand, Malaysia, Singapore), an indictable offence is an offence which can only be tried on an indictment after a preliminary hearing ...

s, 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. In 1789, Congress created the first system of intermediate appellate courts, known as federal circuit courts, which had appellate jurisdiction over certain matters decided by District Courts. These federal circuit courts consisted of two justices from the

Supreme Court of the United States The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all Federal tribunals in the United States, U.S. federal court cases, and over Stat ...

and one district court judge. With the Circuit Court of Appeals Act of 1891, it created a Circuit Court of Appeal, which would provide an improved appeals process while also alleviating part of the appellate burden of lower courts by adding nine Circuit Courts (today 12). The 1891 act created the existing system of United States courts of appeals, which hear appeals from United States district courts within limited geographic areas. For example, the United States Court of Appeals for the Fifth Circuit hears appeals originating from United States district courts in

Louisiana Louisiana ( ; ; ) is a state in the Deep South and South Central regions of the United States. It borders Texas to the west, Arkansas to the north, and Mississippi to the east. Of the 50 U.S. states, it ranks 31st in area and 25 ...

Mississippi Mississippi ( ) is a U.S. state, state in the Southeastern United States, Southeastern and Deep South regions of the United States. It borders Tennessee to the north, Alabama to the east, the Gulf of Mexico to the south, Louisiana to the s ...

, and

Texas Texas ( , ; or ) is the most populous U.S. state, state in the South Central United States, South Central region of the United States. It borders Louisiana to the east, Arkansas to the northeast, Oklahoma to the north, New Mexico to the we ...

. Decisions in circuit courts are usually made by rotating three-judge panels chosen from judges sitting within that circuit, and circuit courts also occasionally decide cases

en banc In law, an ''en banc'' (; alternatively ''in banc'', ''in banco'' or ''in bank''; ) session is when all the judges of a court sit to hear a case, not just one judge or a smaller panel of judges. For courts like the United States Courts of Appeal ...

Appellate procedure

New York Court of Appeals hearing oral arguments

Although some courts permit appeals at preliminary stages of

litigation A lawsuit is a proceeding by one or more parties (the plaintiff or claimant) against one or more parties (the defendant) in a civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. ...

, most litigants appeal final orders and judgments from lower courts. 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. Instead, appellate courts will generally defer to the record established by the

trial court A trial court or court of first instance is a court having original jurisdiction, in which trials take place. Appeals from the decisions of trial courts are usually heard by higher courts with the power of appellate review (appellate courts). ...

, unless some error occurred during the fact-finding process. Many jurisdictions provide a

statutory A statute is a law or formal written enactment of a legislature. Statutes typically declare, command or prohibit something. Statutes are distinguished from court law and unwritten law (also known as common law) in that they are the expressed wil ...

or constitutional right for litigants to appeal adverse decisions. 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". The appellate process usually begins when an appellate court grants a party's petition for review or petition for certiorari. Unlike trials, which many

jurisdictions typically perform with a

jury A jury is a sworn body of people (jurors) convened to hear evidence, make Question of fact, findings of fact, and render an impartiality, impartial verdict officially submitted to them by a court, or to set a sentence (law), penalty or Judgmen ...

, appeals are generally presented to a judge, or a panel of judges. Before hearing oral

argument An argument is a series of sentences, statements, or propositions some of which are called premises and one is the conclusion. The purpose of an argument is to give reasons for one's conclusion via justification, explanation, and/or persu ...

, parties will generally submit legal briefs in which the parties present their arguments at length in writing. Appellate courts may also grant permission for an ''amicus curiae'' to submit a brief in support of a particular party or position. After submitting briefs, parties often have the opportunity to present an oral argument to a

judge A judge is a person who wiktionary:preside, presides over court proceedings, either alone or as a part of a judicial panel. In an adversarial system, the judge hears all the witnesses and any other Evidence (law), evidence presented by the barris ...

or panel of judges. During oral arguments, judges often ask questions to attorneys to challenge their arguments or to advance their own legal theories. After deliberating in chambers, appellate courts issue formal written opinions that resolve the legal issues presented for review. 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.

Appellate courts

When considering cases on appeal, appellate courts generally affirm, reverse, or vacate the decision of a lower court. Some courts maintain a dual function, where they consider both appeals and matters of "first instance". For example, the

primarily hears cases on appeal but retains original jurisdiction over a limited range of cases. Some jurisdictions maintain a system of intermediate appellate courts, which are subject to the review of higher appellate courts. The highest appellate court in a jurisdiction is sometimes referred to as a "court of last resort" or supreme court.Gregory L. Acquaviva and John D. Castiglione, ''Judicial Diversity on State Supreme Courts'', 39 ''Seton Hall L. Rev.'' 1203, 1205 (2009).

Notes

References