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Inlaw, anappeal is the process in whichcases 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.[1] Althoughappellate courts have existed for thousands of years,common law countries did not incorporate an affirmative right to appeal into their jurisprudence until the 19th century.[2]
"Appellate review" is the general term for the process by which courts with appellatejurisdiction exercise jurisdiction over matters decided by lower courts. It is distinguished fromjudicial review, which refers to the court's overriding constitutional or statutory right to determine whether a legislative act or administrative decision is defective for jurisdictional or other reasons (which may vary by jurisdiction).
American English andBritish English have diverged significantly on the topic of appellate terminology.[3] 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.[3] 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).[3]
In most jurisdictions the normal and preferred way of seeking appellate review is by filing an appeal against the lower court's judgment.
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.[4]Ancient Roman law recognized the right to appeal in theValerian and Porcian laws since 509 BC. Later it employed a complex hierarchy of appellate courts, where some appeals would be heard by theemperor.[5] Additionally, appellate courts have existed in Japan since at least theKamakura shogunate (1185–1333). During this time, the shogunate establishedhikitsuke, a high appellate court to aid the state in adjudicating lawsuits.[6]
Although some scholars argue that "the right to appeal is itself a substantive liberty interest",[7] the notion of a right to appeal is a relatively recent advent in common law jurisdictions.[8] Commentators have observed that common law jurisdictions were particularly "slow to incorporate a right to appeal into either its civil or criminal jurisprudence".[9]
The idea of an appeal from court to court (as distinguished from court directly to the Crown) was unheard of in early English courts.[10] English common law courts eventually developed thewrits of error andcertiorari 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.[10] For example, writs of error were originally not available as a matter of right and were issued only upon the recommendation of theattorney general (which was initially discretionary but by modern times was regularly granted).[10] Certiorari was originally available only forsummary offences; in the early 19th century, certiorari became available forindictable offences, but only to obtain relief before judgment.[10] 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.[10]
We are not final because we are infallible, but we are infallible only because we are final.
Although some courts permit appeals at preliminary stages oflitigation, most litigants appeal final orders and judgments from lower courts.[12] A fundamental premise of many legal systems is that appellate courts review questions of lawde novo, but appellate courts do not conduct independent fact-finding.[13] Instead, appellate courts will generally defer to the record established by thetrial court, unless some error occurred during the fact-finding process.[14] In some jurisdictions on the other hand, such as the Netherlands, appellate courts review cases in their entirety, which includes fact-finding.[15] Manyjurisdictions provide astatutory orconstitutional right for litigants to appeal adverse decisions.[16] However, most jurisdictions also recognize that this right may bewaived. In the United States, for example, litigants may waive the right to appeal, as long as the waiver is "considered and intelligent".[17]
The appellate process usually begins when an appellate court grants a party'spetition for review or petition for certiorari.[18] Unlike trials, which manycommon law jurisdictions typically perform with ajury, appeals are generally presented to a judge, or a panel of judges.[19] Before hearing oralargument, parties will generally submitlegal briefs in which the parties present their arguments at length in writing.[20] Appellate courts may also grant permission for anamicus curiae to submit a brief in support of a particular party or position.[21] After submitting briefs, parties often have the opportunity to present anoral argument to ajudge or panel of judges.[22] During oral arguments, judges often ask questions toattorneys to challenge their arguments or to advance their own legal theories.[23] After deliberating in chambers, appellate courts issue formal written opinions that resolve thelegal issues presented for review.[24]
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)[25] or an affirmation, in which the lower court's decision is found to be correct.[26]
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When considering cases on appeal, appellate courts generally affirm, reverse, orvacate the decision of a lower court.[27] Some courts maintain a dual function, where they consider both appeals and matters of "first instance".[28] For example, theSupreme Court of the United States primarily hears cases on appeal but retains original jurisdiction over a limited range of cases.[29] Some jurisdictions maintain a system of intermediate appellate courts, which are subject to the review of higher appellate courts.[30] The highest appellate court in a jurisdiction is sometimes referred to as a "court of last resort" or supreme court.[31]
