Discretionary review

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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 any review mandated by statute, [2] which guides appellate courts about what they can and cannot do during the review process. [3]

Contents

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 a 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 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 organisation", whose decisions create legal precedent. [4]

Ireland

The 1937 Constitution of Ireland 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. [5] The Supreme Court now has discretion whether to hear appeals from the Court of Appeal or, exceptionally, directly from the High Court. [6]

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. The Congress then created the United States courts of appeals 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 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. [7] 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. [8] 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. [9]

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An appellate court, commonly called a court of appeal(s), 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 the world, court systems are divided into at least three levels: the trial court, which initially hears cases and reviews evidence and testimony to determine the facts of the case; at least one intermediate appellate court; and a supreme court (or court of last resort) which primarily reviews the decisions of the intermediate courts, often on a discretionary basis. A particular court system's supreme court is its highest appellate court. Appellate courts nationwide can operate under varying rules.

In the United States, a state supreme court is the highest court in the state judiciary of a U.S. state. On matters of state law, the judgment of a state supreme court is considered final and binding in both state and federal courts.

In the United States, a state court has jurisdiction over disputes with some connection to a U.S. state. State courts handle the vast majority of civil and criminal cases in the United States; the United States federal courts are far smaller in terms of both personnel and caseload, and handle different types of cases. States often provide their trial courts with general jurisdiction and state trial courts regularly have concurrent jurisdiction with federal courts. Federal courts are courts of limited jurisdiction and their subject-matter jurisdiction arises only under federal law.

<span class="mw-page-title-main">United States courts of appeals</span> Post-1891 U.S. appellate circuit courts

The United States courts of appeals are the intermediate appellate courts of the United States federal judiciary. They hear appeals of cases from the United States district courts and some U.S. administrative agencies, and their decisions can be appealed to the Supreme Court of the United States. The courts of appeals are divided into 13 "Circuits". Eleven of the circuits are numbered "First" through "Eleventh" and cover geographic areas of the United States and hear appeals from the U.S. district courts within their borders. The District of Columbia Circuit covers only Washington, DC. The Federal Circuit hears appeals from federal courts across the entire United States in cases involving certain specialized areas of law.

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 the lower court be sent to the superior court for review. The term is Latin for "to be made more certain", and comes from the opening line of such writs, which traditionally began with the Latin words "Certiorari volumus...".

<span class="mw-page-title-main">Supreme Court of Ireland</span> Highest judicial authority in Ireland

The Supreme Court of Ireland is the highest judicial authority in Ireland. It is a court of final appeal and exercises, in conjunction with the Court of Appeal and the High Court, judicial review over Acts of the Oireachtas. The Supreme Court also has appellate jurisdiction to ensure compliance with the Constitution of Ireland by governmental bodies and private citizens. It sits in the Four Courts in Dublin.

Discretionary jurisdiction is a power that allows a court to engage in discretionary review. This power gives a court the authority to decide whether to hear a particular case brought before it. Typically, courts of last resort and intermediate courts in a state or country will have discretionary jurisdiction. In contrast, the lower courts have no such power. For this reason, the lower courts must entertain any case properly filed, so long as the court has subject matter jurisdiction over the questions of law and in personam jurisdiction over the parties to the case. Customarily a court is granted the power by rule, statute, or constitutional provision. When a constitutional provision establishes the court's power, it will have more limitations on its screening process. The usual intent behind granting power through a constitutional provision is to maintain decisional uniformity.

The federal judiciary of the United States is one of the three branches of the federal government of the United States organized under the United States Constitution and laws of the federal government. The U.S. federal judiciary consists primarily of the U.S. Supreme Court, the U.S. Courts of Appeals, and the U.S. District Courts. It also includes a variety of other lesser federal tribunals.

An interlocutory appeal occurs when a ruling by a trial court is appealed while other aspects of the case are still proceeding. The rules governing how and when interlocutory appeals may be taken vary by jurisdiction.

In law, the standard of review is the amount of deference given by one court in reviewing a decision of a lower court or tribunal. A low standard of review means that the decision under review will be varied or overturned if the reviewing court considers there is any error at all in the lower court's decision. A high standard of review means that deference is accorded to the decision under review, so that it will not be disturbed just because the reviewing court might have decided the matter differently; it will be varied only if the higher court considers the decision to have obvious error. The standard of review may be set by statute or precedent. In the United States, "standard of review" also has a separate meaning concerning the level of deference the judiciary gives to Congress when ruling on the constitutionality of legislation.

The Judiciary Act of 1925, 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.

<span class="mw-page-title-main">Supreme court</span> Highest court in a jurisdiction

In most legal jurisdictions, a supreme court, also known as a court of last resort, apex court, and highcourt of appeal, is the highest court within the hierarchy of courts. Broadly speaking, the decisions of a supreme court are binding on all other courts in a nation and are not subject to further review by any other court. Supreme courts typically function primarily as appellate courts, hearing appeals from decisions of lower trial courts, or from intermediate-level appellate courts. A Supreme Court can also, in certain circumstances, act as a court of original jurisdiction, however, this is typically limited to constitutional law.

<span class="mw-page-title-main">Judiciary of Ghana</span> Branch of government

The Judiciary of Ghana comprises the Superior Courts of Judicature, established under the 1992 Constitution, and the Inferior Courts, established by Parliament. The hierarchy of courts derives largely from British juridical forms. The courts have jurisdiction over all civil and criminal matters.

<i>Chng Suan Tze v Minister for Home Affairs</i> 1988 Singapore Court of Appeal judgement

Chng Suan Tze v. Minister for Home Affairs is a seminal case in administrative law decided by the Court of Appeal of Singapore in 1988. The Court decided the appeal in the appellants' favour on a technical ground, but considered obiter dicta the reviewability of government power in preventive detention cases under the Internal Security Act ("ISA"). The case approved the application by the court of an objective test in the review of government discretion under the ISA, stating that all power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power. This was a landmark shift from the position in the 1971 High Court decision Lee Mau Seng v. Minister of Home Affairs, which had been an authority for the application of a subjective test until it was overruled by Chng Suan Tze.

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 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.

The judiciary of the Philippines consists of the Supreme Court, which is established in the Constitution, and three levels of lower courts, which are established through law by the Congress of the Philippines. The Supreme Court has expansive powers, able to overrule political and administrative decisions, and with the ability to craft rules and law without precedent. It further determines the rules of procedure for lower courts, and its members sit on electoral tribunals.

A grant of appellate review is dismissed as improvidently granted (DIG) when a court with discretionary appellate jurisdiction later decides that it should not review the case. Notably, the Supreme Court of the United States occasionally grants a petition of the writ of certiorari, only to later DIG the case.

References

  1. ↑ Andrew F. Daughety, Jennifer F. Reinganum. "Speaking Up: A Model of Judicial Dissent and Discretionary Review" (PDF). Vanderbilt University. Archived from the original (PDF) on 2009-02-25. Retrieved 2008-02-02.
  2. ↑ See, e.g., 28 U.S.C.   §§ 1291 – 1296; 28 U.S.C.   §§ 2342 – 2349
  3. ↑ See, e.g., 8 U.S.C.   § 1252
  4. ↑ 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. ISBN   0-7923-3146-X.
  5. ↑ "Explanatory Memorandum : Thirty-third Amendment of the Constitution (Court of Appeal) Bill 2013" (PDF). Oireachtas.; "Thirty-third Amendment of the Constitution Act, 2013". electronic Irish Statute Book (eISB).
  6. ↑ "Supreme Court of Ireland". www.citizensinformation.ie. Ireland: Citizens Information Board. 22 January 2015. Retrieved 6 September 2018.
  7. ↑ "U.S. Supreme Court". West's Encyclopedia of American Law. Gale Group. 1998. Retrieved 2008-02-02.
  8. ↑ James R. Acker, David C. Brody (2004). Criminal Procedure: A Contemporary Perspective. Jones & Bartlett. ISBN   0-7637-3169-2.
  9. ↑ "Supreme Courts – Court of Criminal Appeals and Texas Supreme Court". Texas Politics. University of Texas. Archived from the original on 2008-02-02. Retrieved 2008-02-03.
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