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What is an Appeal?

Updated on March 1, 2010

An appeal, in law, is a complaint to a higher court of an injustice done by a lower one. In English law the earliest meaning of "appeal" was "to accuse". Not until the late 13th century was the term applied to a proceeding to transfer a case to a higher court, there to be tried and decided de novo (anew) on newly introduced evidence, without reference to the inferior court's decision.

In modern legal procedure, however, an appeal brings judgments of lower courts or of administrative and other tribunals to a higher court for a review of their correctness. Appellate courts may reverse, modify, or sustain the challenged determination after examining the whole or pertinent parts of the record. The U.S. Supreme Court and other courts of last resort deal primarily with legal, not factual, questions.

Appeal is not an inherent or constitutional right in the United States. An appellate court comes into existence only through constitutional or statutory enactment. Although no state is required by the U.S. Constitution to provide appellate remedies, such remedies are traditional in the Anglo-American legal system.

In the federal judicial system there are intermediate appellate courts and the court of last resort, the U.S. Supreme Court. Although the Constitution vests the Supreme Court with both original and appellate jurisdiction, the former type is rare. The Supreme Court's appellate jurisdiction is under the unlimited discretionary control of the U.S. Congress. Without a federal statute affording review in any specified area, jurisdiction is lacking.

In 1925, with a progressively increasing caseload, the Supreme Court was given discretionary power by Congress to control its appellate functions. Review is by permission only, except for a state statute repugnant to the Constitution, treaties, or laws of the United States, or for an act of Congress held unconstitutional and so reviewable as of right. Neither error nor correctness of decision determines reviewability. The court accepts a case for review "in the interest of the law, its appropriate exposition and enforcement; not in the mere interest of the litigants" (Supreme Court Justice John M. Har-lan in Manning the Dikes, 1958).

Review by the Supreme Court of a death sentence for a federal offense was a matter of right until abolished by Congress in 1911. The court's present discretionary power was strikingly illustrated in an espionage case, involving the atomic bomb, in which a death sentence was imposed. In Rosenberg v. United States (1952), the court held that a "sentence imposed by the United States District Court, even though it be a death sentence, is not within the power of this Court to revise."

Yet when a state, though not so required, does create an appellate remedy, the Supreme Court has held that "destitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts"; to do otherwise would be a denial of "a constitutional right guaranteed by the Fourteenth Amendment" (Draper v. Washington, 1963).

State appellate court organization and jurisdiction are similar to those of the federal courts, with local variations. The same is generally true of Canada, whose Supreme Court hears appeals from final judgments of the court of last resort in each province.

Appellate courts in the United States are the source of much "judicial legislation", as sweeping and effective in its impact, and often more so, than legislative enactment. Although this judge-made law embodied in precedent is binding and respected, it may be overruled by later judicial decision.

Britain's highest court, the House of Lords, announced in 1966 that it will "depart from a previous decision when it appears right to do so." Until then, judicial precedent was the law of the land and, if wrong, could be remedied only by an act of Parliament.

Britain has no written constitution; the law lords, appointed like other high judges, are entitled to sit in legislative capacity in the House of Lords. When acting as a court they comprise a bane of nine and hear appeals just as does the U.S. Supreme Court.


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