Chapter 3- Appellate Process Flashcards
Legal Model
(law school)
- you must understand precedent cases to understand the current case
- squarely about learning precedent (application star decisis)
[precedent]
Attitudinal model
- starts with the acknowledgement that “judges are people”
- comes to the table with preconceived notions (these are what we can base judges decisions off of)
- law does not mean much
- issues that are important to the judge are the ones they are going to focus on.
[people]
constitutional interpretation philosophy
a branch from the legal and attitudinal models
- strict constitutionalist
- living constitutionalist
- textualist
- on-balance (the constitution cannot provide answer)
Institutional theory
where you are within that institution’s jurisdiction, that is going to influence court decisions
{a 3 court judge will decide differently from a 9 judge panel}
State courts are different (2)
- jurisdiction mandatory/ discretionary appeal
Under institutional theory….. elements that impact consequences (4)
1) mandatory vs. discretionary appeals
2) # of judges in the panel
3) whether people are elected/appointed
4) elected/appointed vs. life tenure (cause judges to act crazy)
Strategic Model
- maximizing agreement
- increasing legitimacy
How is this done?- opinion writing process
Opinion Writing Process
case: Craig vs. Boren
- drinking age 21 and up
- gender discrimination
case: Reid vs. Reid
- rational basis test
- if what the state judge makes sense, let them do it
race discrimination scrutiny cases: could not pass
—-5 different opinions were being written/ lower legitimacy
Opinion Writing Process:
1st draft—
Final draft–
- -5 opinions/// redrafts to maximize agreement and compromise
- -new standard : intermediate scrutiny
Appellate Courts
subject the action of the first court to a second look, examining not only a rod spew as it is being presented by, a controversy that has already been packaged and decided in a trial court proceeding.
Intermediate appellate courts
decisions are made by a rotating three judges
Purpose of the Appellate Courts
Error correction
Error correction is concerned primarily with the effect of the judicial process on the individual litigants, where is policy formulation considers the impact of the appellate court’s decision on other cases
Policy formulation
Policy formulation occurs when appellate courts fill in the gaps in existing law, offering new interpretations of current law, or even overruling previous decisions. it is through policy formulation that italic works in response to changing conditions in society
Double jeopardy
a second prosecution of the same person for the same crime by the same sovereign after the first trial
Limits for cases to be appealed:
1) The losing party may appeal only from a final judgement of the lower court
2) Appeals are also restricted to questions of law…. Because they are not exposed to evidence
3) Confined to issue made in the trial court
4) Confined to a single appeal
Mandatory jurisdiction
must hear all properly filed appeals
Discretionary jurisdiction
they pick and choose the cases they hear
Appellate Process:
(1) Launching an appeal
(2) Preparing and Transmitting the Record
(3) Filing & Writing Briefs
(4) oral arguments
(5) Writing an Opinion
(6) Disposing of the case
affirm, [modify, reverse, or remand]
only can do this if they find error
Affirm
lower court got it right
Modify
little things changed but lower court got it right
reverse
disagrees with the lower court
Remand
appellate court tells the lower court to retry the case –provided instructions
Civil Appeal Factors
- How much litigants lost in the lower courts
- Likelihood of success
- Financial considerations (appeals are expensive)
Criminal Appeal Factors
- Relatively homogeneous
- Routine rarely successful (often find no reversible error) AFFIRM convictions
- Likely to involve the least serious offenses and offender (for successful cases)
Assisted by law clerks
they work for individual judges… work on cases after the arguments
Assisted by staff attorneys
work for the entire court… work on cases before the oral argument stage
Eligibility for jury selection
- -not a felony
- -local jurisdictional resident
- -good comprehension of English
- -U.S. Citizen
Gideon asks for …..
a post conviction remedy
Post-conviction remedies differ from appeals…
a. Only can be filed by those in prison
b. Raise only constitution defects
c. Broad: can bring up issues not raised during trial and raise constitutional protections
unlimited in number
collateral attacks
all is said and done, but then you find something extra to reopen the case
Habeas Corpus Relief:
is a judicial order to someone holding a person to bring that person immediately before the court, and this right is protected by Article 1 of the constitution.
dissenting opinion
“Opinion written by a judge of an appellate court that states the reasons for disagreeing with the majority decision”
Brief
written argument that sets forth the party’s view of the facts of the case, the issues raised on the appeal, and the precedents supporting the party’s position
New Judicial Federalism
movement in state supreme courts to reinvigorate states’ constitutions as sources of individual rights over and above the rights granted by the U.S. Constitution.”
