discretionary review
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Discretionary review is the authority
appellate court 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 ...
s have to decide which
appeal 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 ...
s they will consider from among the cases submitted to them. This offers the judiciary a filter on what types of cases are appealed, because judges have to consider in advance which cases will be accepted. The appeals court will then be able to decide substantive cases with the lowest
opportunity cost In microeconomic theory, the opportunity cost of a particular activity is the value or benefit given up by engaging in that activity, relative to engaging in an alternative activity. More effective it means if you chose one activity (for example ...
. The opposite of discretionary review is any review mandated by statute, which guides appellate courts about what they can and cannot do during the review process. The advantage to discretionary review is that it enables an appellate court to focus its limited resources on developing a coherent body of
case law Case law, also used interchangeably with common law, is law that is based on precedents, that is the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations. Case law uses the detailed facts of a le ...
, or at least it is able to focus on making decisions in consistent fashion (in jurisdictions where case law is not recognized). The disadvantage is that it reduces the ability of litigants to seek review of incorrect decisions of lower courts. However, the problem with allowing appeals of right through all appellate levels is that it encourages parties to exploit every technical error of ''each'' level of the court system as a basis for further review. Discretionary review forces parties to always concentrate their resources on persuading the trial court to get it right the first time around (rather than assuming an appellate court will "fix it later"), thus increasing the overall efficiency of the judicial system. Of course, it also leaves them at the mercy of the discretion of the trial court.


Europe Commission on Human Rights

The European Commission on Human Rights exercised discretionary review against the petitions it received under the
European Convention on Human Rights The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by t ...
by rejecting those that it determined were ill-founded and show no apparent violation, which has allowed it to manage its caseload. By doing so, the Commission has evolved from a "service organisation" to a "
commonweal Commonweal or common weal may refer to: * Common good, what is shared and beneficial for members of a given community * Common Weal, a Scottish think tank and advocacy group * ''Commonweal'' (magazine), an American lay-Catholic-oriented magazin ...
organisation", whose decisions create legal
precedent A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great val ...
.


Ireland

The 1937
Constitution of Ireland The Constitution of Ireland ( ga, Bunreacht na h√Čireann, ) is the fundamental law of Ireland. It asserts the national sovereignty of the Irish people. The constitution, based on a system of representative democracy, is broadly within the tradit ...
originally provided a right of appeal to the Supreme Court for all cases from the High Court. A 2013 amendment introduced a new Court of Appeal, above the High Court and below the Supreme Court, which is the usual court of final appeal. The Supreme Court now has discretion whether to hear appeals from the Court of Appeal or, exceptionally, directly from the High Court.


United States

For 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 U.S. federal court cases, and over state court cases that involve a point o ...
, this discretion is termed the granting of a
writ In common law, a writ (Anglo-Saxon ''gewrit'', Latin ''breve'') is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court. Warrants, prerogative writs, subpoenas, ...
of
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 ...
("cert"). This discretion was not granted to the Court until 1891, after its docket became clogged with ''
pro forma The term ''pro forma'' (Latin for "as a matter of form" or "for the sake of form") is most often used to describe a practice or document that is provided as a courtesy or satisfies minimum requirements, conforms to a norm or doctrine, tends to ...
'' appeals from lower courts. The
Congress A congress is a formal meeting of the representatives of different countries, constituent states, organizations, trade unions, political parties, or other groups. The term originated in Late Middle English to denote an encounter (meeting of ...
then created the
United States courts of appeals The United States courts of appeals are the intermediate appellate courts of the United States federal judiciary. The courts of appeals are divided into 11 numbered circuits that cover geographic areas of the United States and hear appeals fr ...
system divided into now twelve regional circuits, with the Supreme Court generally only hearing cases from the appellate level or from the highest state court. The
Judiciary Act of 1925 The Judiciary Act of 1925 (43 Stat. 936), also known as the Judge's Bill or Certiorari Act, was an act of the United States Congress that sought to reduce the workload of the Supreme Court of the United States. Background Although the Judiciary ...
further expanded certiorari, authorizing the court to determine any case from a lower level concerning "federal questions of substance". Today, 98 percent of federal cases are decided at the appellate level. In 1988, Congress further limited appeals with the Supreme Court Case Selections Act, eliminating the right of appeal from certain state court decisions construing federal law. A similar model holds in most U.S. state judiciaries, with discretionary review only available to the state's supreme court, and the appeals courts bound to hear all appeals. In
North Carolina North Carolina () is a state in the Southeastern region of the United States. The state is the 28th largest and 9th-most populous of the United States. It is bordered by Virginia to the north, the Atlantic Ocean to the east, Georgia and ...
, the supreme court's choice to exercise discretionary review depends not on whether the case was decided correctly with regard to the defendant's guilt, but on whether the particular legal questions raised in the appeal have a
public interest The public interest is "the welfare or well-being of the general public" and society. Overview Economist Lok Sang Ho in his ''Public Policy and the Public Interest'' argues that the public interest must be assessed impartially and, therefore ...
, involve important legal principles, or conflict with precedents set by prior supreme courts. In
Texas Texas (, ; Spanish language, Spanish: ''Texas'', ''Tejas'') is a state in the South Central United States, South Central region of the United States. At 268,596 square miles (695,662 km2), and with more than 29.1 million residents in 2 ...
, discretionary review is granted to both of the state's supreme courts (Texas is one of two states with separate supreme courts for civil and criminal cases) for all but
death penalty Capital punishment, also known as the death penalty, is the state-sanctioned practice of deliberately killing a person as a punishment for an actual or supposed crime, usually following an authorized, rule-governed process to conclude that ...
cases, which the Court of Criminal Appeals is required to review, bypassing the
Texas Courts of Appeals The Texas Courts of Appeals are part of the Texas judicial system. In Texas, all cases appealed from district and county courts, criminal and civil, go to one of the fourteen intermediate courts of appeals, with one exception: death penalty cases. ...
.


References

{{reflist Appellate review