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law Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vari ...
, 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 countries did not incorporate an affirmative right to appeal into their jurisprudence until the 19th century.


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 In modern historiography, ancient Rome refers to Roman people, Roman civilisation from the founding of the city of Rome in the 8th century BC to the collapse of the Western Roman Empire in the 5th century AD. It encompasses the Roman Kingdom ...
law recognized the right to appeal in the
Valerian and Porcian laws The Valerian and Porcian laws were Roman laws passed between 509 BC and 184 BC. They exempted Roman citizens from degrading and shameful forms of punishment, such as whipping, scourging, or crucifixion. They also established certain rights for Ro ...
since 509 BC. Later it employed a complex hierarchy of appellate courts, where some appeals would be heard by the
emperor An emperor (from la, imperator, via fro, empereor) is a monarch, and usually the sovereign ruler of an empire or another type of imperial realm. Empress, the female equivalent, may indicate an emperor's wife ( empress consort), mother (emp ...
. Additionally, appellate courts have existed in Japan since at least the
Kamakura Shogunate The was the feudal military government of Japan during the Kamakura period from 1185 to 1333. Nussbaum, Louis-Frédéric. (2005)"''Kamakura-jidai''"in ''Japan Encyclopedia'', p. 459. The Kamakura shogunate was established by Minamoto no Yo ...
(1185–1333 CE). During this time, the Shogunate established ''
hikitsuke The Hikitsuke (引付 lit. enquiry) or Hikitsuke-kata (引付方) (High Court) was one of the judicial organs of the Kamakura and Muromachi shogunates of Japan. The Hikitsuke was established by the fifth ''shikken'' Hōjō Tokiyori in 1249 to exp ...
'', 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. In fact, 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 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 an English prerogative writ, issued by a superior court to direct that the record of ...
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 or attorney-general (sometimes abbreviated AG or Atty.-Gen) is the main legal advisor to the government. The plural is attorneys general. In some jurisdictions, attorneys general also have exec ...
(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 offen ...
s; in the early 19th century, certiorari became available for indictable offences, 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. The United States first created a system of federal appellate courts in 1789, but a federal right to appeal did not exist in the United States until 1889, when Congress passed the Judiciary Act to permit appeals in capital cases. Two years later, the right to appeals was extended to other criminal cases, and the United States Courts of Appeals were established to review decisions from district courts. Some states, such as Minnesota, still do not formally recognize a right to criminal appeals. The U.S. Supreme Court has repeatedly ruled that there is no federal constitutional right to an appeal.


Appellate procedure

Although some courts permit appeals at preliminary stages of
litigation - A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil act ...
, 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 A court of appeals, also called a court of appeal, appellate court, appeal court, court of second instance or second instance court, is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal. In much of ...
will generally defer to the record established by the trial court, unless some error occurred during the fact-finding process. Many jurisdictions provide a
statutory A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by l ...
or
constitutional right A constitutional right can be a prerogative or a duty, a power or a restraint of power, recognized and established by a sovereign state or union of states. Constitutional rights may be expressly stipulated in a national constitution, or they may ...
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 In some jurisdictions, a petition for review is a formal request for an appellate tribunal to review the decision of a lower court or administrative body. If a jurisdiction utilizes petitions for review, then parties seeking appellate review of th ...
or petition for certiorari. Unlike trials, which many common law jurisdictions typically perform with a jury, appeals are generally presented to a judge, or a panel of judges. Before hearing oral
argument An argument is a statement or group of statements called premises intended to determine the degree of truth or acceptability of another statement called conclusion. Arguments can be studied from three main perspectives: the logical, the dialectic ...
, parties will generally submit
legal brief A brief (Old French from Latin "''brevis''", short) is a written legal document used in various legal adversarial systems that is presented to a court arguing why one party to a particular case should prevail. In England and Wales (and other Com ...
s 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 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 List of lists of issues and controversies with the law * Legal issues in airsoft * Legal issues with fan fiction * Burger King legal issues * Legal issues and controversies surrounding Netflix * Legality of cannabis The legality of ca ...
presented for review.


Appellate courts

When considering cases on appeal, appellate courts generally affirm, reverse, or
vacate A vacated judgment (also known as vacatur relief) makes a previous legal judgment legally void. A vacated judgment is usually the result of the judgment of an appellate court, which overturns, reverses, or sets aside the judgment of a lower court. ...
the decision of a lower court. Some courts maintain a dual function, where they consider both appeals as well as matters of "first instance". For example, the Supreme Court of the United States 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".Gregory L. Acquaviva and John D. Castiglione, ''Judicial Diversity on State Supreme Courts'', 39 ''Seton Hall L. Rev.'' 1203, 1205 (2009).


See also

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Civil procedure Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits (as opposed to procedures in criminal law matters). These rules govern how a lawsuit or case may be commenced; what ki ...
*
List of legal topics :'' The following outline is provided as an overview of and topical guide to law:'' Law ('' article link'') is the set of rules and principles (laws) by which a society is governed, through enforcement by governmental authorities. Law is also t ...
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Judicial review Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incompa ...
*
Appellate procedure in the United States 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 ...
*
Scope of review The scope of review refers generally to the right to have an issue raised on appeal. It entails whether an issue was preserved by or available to an appellant on appeal. Scope of review is to the appellate court what the burden of proof is to the t ...
*
Criminal appeal An "appeal" was a procedure in English law to bring about a prosecution by a private party of an individual accused of a heinous crime. Generally " n appealis derived from the French, ‘appeller ’...which signifies to call upon, summon or chall ...


Notes


References

{{Authority control Appellate review Judiciaries Lawsuits Legal procedure