Appeals

discretionary jurisdiction

A court can decide whether to hear the case. Examples: U.S. Supreme Court, most state courts of last resort.

mandatory jurisdiction

A court is required to hear the case. Examples: U.S. courts of appeals, state intermediate appellate courts.

Filing Briefs in Court

A group can file an amicus curiae brief. The purpose is to influence the judicial decision. Examples: -Over 100 amici briefs were filed in Grutter v. Bollinger (2003), which dealt with affirmative action in higher education. -136 amici briefs were filed in Fisher v. University of Texas (2013), which also dealt with affirmative action in higher education a decade later.

Identifying Potential Litigants

A group can file suit on its own behalf. -However, it must be able to demonstrate it has standing (i.e., that it has been directly injured). -Often difficult for a group to do. Alternative is to identify litigants who already have standing. Examples: -NAACP's efforts to dismantle racial segregation laws -CATO Institute's efforts to have the Supreme Court declare an individual right to own a gun

regular concurrence

A separate opinion in which the judge agrees with the outcome in the case (i.e., who wins and who loses), and for the reasons articulated in the majority opinion, but the judge wishes to make a further point or offer what she sees as a necessary clarification or emphasis.

special concurrence

A separate opinion in which the judge agrees with the outcome in the case (i.e., who wins and who loses), but does so for different reasons than those articulated in the majority opinion.

dissent

A separate opinion in which the judge disagrees with the outcome in the case (i.e., who wins and who loses) and the reasoning articulated in the majority opinion.

Petition for a Writ of Certiorari

A written request of a litigant seeking review of a lower court proceeding by a superior court. This is the legal vehicle used to request review by the U.S. Supreme Court (and some state courts of last resort). Denial of a petition for a writ of certiorari leaves the lower court ruling in place but is not the equivalent of affirming the lower court ruling.

costs

Additional Attorney Fees Filing Fees Reproduction of Records Appellate Court Bar Fees Appeal Bond

appeal bond

Also known as a supersedeas bond. A bond posted by a losing defendant who is appealing an adverse decision. The appeal bond stays the plaintiff's immediate collection of the judgment. Also safeguards the plaintiff's ability to collect should she win on appeal.

purposes of appealing

An appeal is intended to catch legal errors that occur at trial. Appeals also serve as vehicles for appellate courts to make broader policies. Federal Example: School desegregation State Example: School funding disparities

Low Odds of Winning on Appeal

Appellate courts with discretionary jurisdiction accept relatively few cases on appeal. Appellate courts with mandatory jurisdiction have dockets disproportionately filled with cases that were decided correctly in the lower court.

oral argument

Arguments delivered orally to the judges by the attorneys representing the litigants in the case. Length of oral argument is dependent upon the rules of the particular jurisdiction. Not all appellate cases involve oral argument but, instead, are decided on the basis of the written briefs alone.

amicus curiae brief

Briefs filed by third-parties (i.e., not direct parties to a case). Originally filed by those with no stake in the outcome of a case. -Provided expertise to courts. Now tools of advocacy. -Majority are filed by interest groups.

Dissents on State Courts of Last Resort

Elected state court of last resort judges are less likely to dissent in controversial cases. State courts of last resorts with more discretionary dockets have greater levels of dissent. State courts of last resorts with higher workloads have lower levels of dissent.

Mechanisms for Interest Group Influence

Identifying potential litigants Filing briefs in court Publicizing issues in the broader political environment Winning cases that change the law

voting and opinion writing

Judges go behind closed doors to vote on case outcomes and write opinions deciding appeals. Deciding which judge writes the opinion of the court depends on the jurisdiction. In the U.S. Supreme Court, the chief justice assigns the opinion if he is in the majority vote coalition, otherwise it is the most senior justice in terms of tenure on the Court who makes that assignment. In the U.S. courts of appeals, the most senior judge on the panel makes that assignment. In the states, that assignment can be made (1) the chief justice, (2) on a rotating basis, or (3) on a random basis.

Winning Cases That Change the Law

Litigation strategies developed by groups can secure wins in the courts. Such litigation can clear the way for progress in the legislative sphere, providing "political cover" for legislators to act. -This is true whether or not groups have achieved victory in the courts.

If appealing is costly and unlikely to result in a win, why appeal?

Losers want to win Losers want to be treated fairly

why settle

Mounting legal expenses makes settlement attractive to the litigants. Litigants may wish to get to a resolution more quickly to: -Reduce costs. -Reduce the stress of on-going litigation. Each side learns more about the strengths and weaknesses of its own and the opposing side's arguments, which makes the predictability of settlement more attractive to the litigants.

purposes of oral argument

Permit attorneys to reiterate and expound upon arguments made in the written briefs. Allow judges to ask questions to help them make up their own minds. Allow judges to ask questions to raise issues they want the other judges to consider.

appellant

Plaintiff in Error The litigant appealing the lower court decision.

Publicizing Issues in the Broader Political Environment

Publicizing the cases in which they are involved allows groups to publicize the broader issues with which they are concerned. Increasing public awareness of an issue can lead to enhanced mobilization. The act of litigating itself can foster an understanding of legal rights beyond the particular litigants.

appellee

Respondent The litigant who did not initiate the appeal.

The Strategic Model

Similar to the attitudinal model, the strategic model begins with the premise that, all else being equal, judges would like to have their preferences enacted into law. Advocates of the strategic model argue that judges (even U.S. Supreme Court justices) are not unconstrained actors. Judges may be concerned about, for example: -Review by a higher court -Promotion to a higher court -Legislative responses.

court encouragement of settlement

Some courts are actively involved in encouraging litigants to settle. For example, the Michigan Court of Appeals Pre-Argument Settlement Program uses mediators to facilitate settlements in general civil matters and domestic relations matters. The Federal Rules of Appellate Procedure also encourage settlement.

content of legal briefs

Statement of the reasons for the appeal Statement of the relevant facts Legal basis for requested reversal or modification of lower court decision Non-legal evidence in support of litigant's side

Models of Judicial Decision Making

The Legal Model The Attitudinal Model The Strategic Model

The Attitudinal Model

The attitudinal model is the contemporary successor of legal realism. Most accurate as a description of decision making on the U.S. Supreme Court. Why? -Discretionary docket -No progressive ambition on the part of the justices -Lifetime tenure -Lack of review for the Court's constitutional decisions

with prejudice

The court terminates the appeal and bars the appellant from appealing the same case in the future. Usually the result of egregious cases of an appellant's obstruction of justice.

without prejudice

The court terminates the appeal but leaves open the possibility that the appellant will appeal the same case in the future. Usually the result of procedural errors that do not significantly affect the rights of the appellant.

notice of appeal

The formal, legal announcement by the losing litigant that she is challenging the lower court ruling.

Factors Potentially Affecting U.S. Court of Appeals Decision Making

The ideological preferences and values of the judges U.S. Supreme Court precedents The preferences and choices of their panel mates The race and/or gender of their panel mates The potential for en banc review The potential for U.S. Supreme Court review

Factors Potentially Affecting State Supreme Court Decision Making

The ideological preferences and values of the judges U.S. Supreme Court precedents The preferences of those responsible for retaining them in office -The electorate for elected judges -Political elites for appointed judges

Separate Opinions and the U.S. Courts of Appeal

The presence of amicus curiae briefs is associated with a greater likelihood of concurrence and dissent. Chief judges are less likely to dissent. "Freshman" judges are less likely to dissent.

The Legal Model

The presumption is that there is some logical form of reasoning internal to the law. A key element of the legal model is the use of reasoned judgment based on text and precedent. Mechanistic jurisprudence of the legal model became unsatisfying as an accurate explanation. -Response was the so-called legal realism movement.

docket

The set of cases awaiting action by a court.

what do appellate courts do

They review lower court decisions to ensure that the lower court followed the correct procedure and/or determine whether a law is constitutional.

obstacles to appeal

costs low odds of winning on appeal

appellate case may go no further if

the litigants settle the case the court dismisses the case

types of dismissal

with prejudice without prejudice