Chapter 3- Appellate Process

Question 1

Legal Model

Answer 1

(law school)
- you must understand precedent cases to understand the current case
- squarely about learning precedent (application star decisis)
[precedent]

Question 2

Attitudinal model

Answer 2

• 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]

Question 3

constitutional interpretation philosophy

Answer 3

a branch from the legal and attitudinal models

• strict constitutionalist
• living constitutionalist
• textualist
• on-balance (the constitution cannot provide answer)

Question 4

Institutional theory

Answer 4

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}

Question 5

State courts are different (2)

Answer 5

1. jurisdiction mandatory/ discretionary appeal

Question 6

Under institutional theory….. elements that impact consequences (4)

Answer 6

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)

Question 7

Strategic Model

Answer 7

• maximizing agreement
• increasing legitimacy
  How is this done?- opinion writing process

Question 8

Opinion Writing Process

Answer 8

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

Question 9

Opinion Writing Process:
1st draft—
Final draft–

Answer 9

• -5 opinions/// redrafts to maximize agreement and compromise
• -new standard : intermediate scrutiny

Question 10

Appellate Courts

Answer 10

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.

Question 11

Intermediate appellate courts

Answer 11

decisions are made by a rotating three judges

Question 12

Purpose of the Appellate Courts

Answer 12

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

Question 13

Double jeopardy

Answer 13

a second prosecution of the same person for the same crime by the same sovereign after the first trial

Question 14

Limits for cases to be appealed:

Answer 14

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

Question 15

Mandatory jurisdiction

Answer 15

must hear all properly filed appeals

Question 16

Discretionary jurisdiction

Answer 16

they pick and choose the cases they hear

Question 17

Appellate Process:

Answer 17

(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

Question 18

affirm, [modify, reverse, or remand]

Answer 18

only can do this if they find error

Question 19

Affirm

Answer 19

lower court got it right

Question 20

Modify

Answer 20

little things changed but lower court got it right

Question 21

reverse

Answer 21

disagrees with the lower court

Question 22

Remand

Answer 22

appellate court tells the lower court to retry the case –provided instructions

Question 23

Civil Appeal Factors

Answer 23

1. How much litigants lost in the lower courts
2. Likelihood of success
3. Financial considerations (appeals are expensive)

Question 24

Criminal Appeal Factors

Answer 24

1. Relatively homogeneous
2. Routine rarely successful (often find no reversible error) AFFIRM convictions
3. Likely to involve the least serious offenses and offender (for successful cases)

Question 25

Assisted by law clerks

Answer 25

they work for individual judges… work on cases after the arguments

Question 26

Assisted by staff attorneys

Answer 26

work for the entire court… work on cases before the oral argument stage

Question 27

Eligibility for jury selection

Answer 27

• -not a felony
• -local jurisdictional resident
• -good comprehension of English
• -U.S. Citizen

Question 28

Gideon asks for …..

Answer 28

a post conviction remedy

Question 29

Post-conviction remedies differ from appeals…

Answer 29

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

Question 30

collateral attacks

Answer 30

all is said and done, but then you find something extra to reopen the case

Question 31

Habeas Corpus Relief:

Answer 31

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.

Question 32

dissenting opinion

Answer 32

“Opinion written by a judge of an appellate court that states the reasons for disagreeing with the majority decision”

Question 33

Brief

Answer 33

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

Question 34

New Judicial Federalism

Answer 34

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.”