Discretionary review
Encyclopedia
Discretionary review is the authority of appellate court
s to decide which appeal
s 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
.
Discretionary review contrasts with 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.
, rejecting those that it determined were ill-founded (by showing no apparent violation), which has allowed it to manage its caseload accordingly. By doing so, the Commission has evolved from a "service organisation" to a "commonweal organisation" whose decisions create legal precedent
for future cases affecting the public.
, 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 various 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 Appeals 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 Appeals level. 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 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. 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
.
Appellate court
An appellate court, commonly called an appeals court or court of appeals or appeal court , is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal...
s to decide which appeal
Appeal
An appeal is a petition for review of a case that has been decided by a court of law. The petition is made to a higher court for the purpose of overturning the lower court's decision....
s they will consider from among the cases
Legal case
A legal case is a dispute between opposing parties resolved by a court, or by some equivalent legal process. A legal case may be either civil or criminal...
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
Opportunity cost
Opportunity cost is the cost of any activity measured in terms of the value of the best alternative that is not chosen . It is the sacrifice related to the second best choice available to someone, or group, who has picked among several mutually exclusive choices. The opportunity cost is also the...
.
Discretionary review contrasts with 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
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
, 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 European Commission on Human Rights exercised discretionary review against the petitions it received under the European Convention on Human RightsEuropean Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
, rejecting those that it determined were ill-founded (by showing no apparent violation), which has allowed it to manage its caseload accordingly. By doing so, the Commission has evolved from a "service organisation" to a "commonweal organisation" whose decisions create legal precedent
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
for future cases affecting the public.
United States
For the Supreme Court of the United StatesSupreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
, this discretion is termed the granting of a writ
Writ
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
of certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
("cert"). This discretion was not granted to the Court until 1891, after its docket became clogged with pro forma
Pro forma
The term pro forma is a term applied to practices or documents that are done as a pure formality, perfunctory, or seek to satisfy the minimum requirements or to conform to a convention or doctrine...
appeals from various lower courts. Congress then created the United States court of appeals
United States court of appeals
The United States courts of appeals are the intermediate appellate courts of the United States federal court system...
system divided into nine regional circuits, with the Supreme Court generally only hearing cases from the Appeals level, or from the highest state court. The Judiciary Act of 1925
Judiciary Act of 1925
The Judiciary Act of 1925 , also known as the Certiorari Act, was an act of the United States Congress which sought to reduce the workload of the Supreme Court of the United States....
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 Appeals level. In 1988, Congress further limited appeals with the Supreme Court Case Selections Act
Supreme Court Case Selections Act
The Supreme Court Case Selections Act of 1988 is an act of Congress that eliminated appeals as of right from state court decisions to the Supreme Court of the United States...
, 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
North Carolina
North Carolina is a state located in the southeastern United States. The state borders South Carolina and Georgia to the south, Tennessee to the west and Virginia to the north. North Carolina contains 100 counties. Its capital is Raleigh, and its largest city is Charlotte...
, 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 whether the particular legal questions raised in the appeal have a public interest
Public interest
The public interest refers to the "common well-being" or "general welfare." The public interest is central to policy debates, politics, democracy and the nature of government itself...
, involve important legal principles, or conflict with precedents set by prior supreme courts. In Texas
Texas
Texas is the second largest U.S. state by both area and population, and the largest state by area in the contiguous United States.The name, based on the Caddo word "Tejas" meaning "friends" or "allies", was applied by the Spanish to the Caddo themselves and to the region of their settlement in...
, 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
Capital punishment in Texas
Capital punishment has been used in the U.S. state of Texas and its predecessor entities since 1819.As of 16 November 2011, 1,228 individuals have been executed. Only Virginia has executed more individuals overall; however, since the death penalty was re-instituted in the United States in the...
cases, which the Court of Criminal Appeals
Texas Court of Criminal Appeals
The Texas Court of Criminal Appeals is the court of last resort for all criminal matters in the State of Texas, United States. The Court, which is based in the Supreme Court Building in Downtown Austin, is composed of a Presiding Judge and eight judges....
is required to review, bypassing the Texas Courts of Appeals
Texas Courts of Appeals
The Texas Courts of Appeals are part of the Texas judicial system. In Texas, all cases appealed from the district level, both criminal and civil, may be heard by one of the fourteen Texas Courts of Appeals. The exception is for cases where the death penalty is a factor; these cases go directly to...
.