World Library  
Flag as Inappropriate
Email this Article

Discretionary review

Article Id: WHEBN0001461682
Reproduction Date:

Title: Discretionary review  
Author: World Heritage Encyclopedia
Language: English
Subject: Appellate review, Appellate court, Certiorari, Court of Cassation (France), Minnesota Court of Appeals
Collection: Appellate Review
Publisher: World Heritage Encyclopedia
Publication
Date:
 

Discretionary review

Discretionary review is the authority appellate courts have to decide which appeals 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.[1]

The opposite of discretionary review is mandatory review, in which appellate courts must consider all appeals submitted.

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, 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

The precedent.[2]

United States

For the Supreme Court of the United States, this discretion is termed the granting of a writ of certiorari ("cert"). This discretion was not granted to the Court until 1891, after its docket became clogged with pro forma appeals from lower courts. Congress then created the United States court of appeals system divided into nine 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 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.[3] 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, 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, involve important legal principles, or conflict with precedents set by prior supreme courts.[4] In Texas, 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 cases, which the Court of Criminal Appeals is required to review, bypassing the Texas Courts of Appeals.[5]

References

  1. ^ Andrew F. Daughety, Jennifer F. Reinganum. "Speaking Up: A Model of Judicial Dissent and Discretionary Review" (PDF).  
  2. ^ Tom Zwart (1994). The Admissibility of Human Rights Petitions: The Case Law of the European Commission of Human Rights and the Human Rights Committee. Martinus Nijhoff Publishers.  
  3. ^ "U.S. Supreme Court". West's Encyclopedia of American Law.  
  4. ^ James R. Acker, David C. Brody (2004). Criminal Procedure: A Contemporary Perspective. Jones & Bartlett.  
  5. ^ "Supreme Courts – Court of Criminal Appeals and Texas Supreme Court". Texas Politics.  
This article was sourced from Creative Commons Attribution-ShareAlike License; additional terms may apply. World Heritage Encyclopedia content is assembled from numerous content providers, Open Access Publishing, and in compliance with The Fair Access to Science and Technology Research Act (FASTR), Wikimedia Foundation, Inc., Public Library of Science, The Encyclopedia of Life, Open Book Publishers (OBP), PubMed, U.S. National Library of Medicine, National Center for Biotechnology Information, U.S. National Library of Medicine, National Institutes of Health (NIH), U.S. Department of Health & Human Services, and USA.gov, which sources content from all federal, state, local, tribal, and territorial government publication portals (.gov, .mil, .edu). Funding for USA.gov and content contributors is made possible from the U.S. Congress, E-Government Act of 2002.
 
Crowd sourced content that is contributed to World Heritage Encyclopedia is peer reviewed and edited by our editorial staff to ensure quality scholarly research articles.
 
By using this site, you agree to the Terms of Use and Privacy Policy. World Heritage Encyclopedia™ is a registered trademark of the World Public Library Association, a non-profit organization.
 



Copyright © World Library Foundation. All rights reserved. eBooks from World Library are sponsored by the World Library Foundation,
a 501c(4) Member's Support Non-Profit Organization, and is NOT affiliated with any governmental agency or department.