Appellate Jurisdiction Research Articles

Appeals That Lie to the Supreme Court of Kenya As Matter of General Public Importance - A Critical Analysis

The Supreme Court is the highest court in the land and it is established by article 163 of the constitution of Kenya. The jurisdiction of the Supreme Court is provided for exhaustively under the act and is further elaborated under part III and IV of the Supreme Court act CAP 9A laws of Kenya. The court has original appellate and advisory jurisdiction. This submission focuses on the appellate jurisdiction of the court.

Odo Ere and Egbe Land Dispute Resolution by the Supreme Court of Nigeria in 1997

In the Yagba Area Court Grade 1 holden at Isanlu, Kwara State (now Kogi State) the plaintiff for himself and as representing Ere Community in West Yagba claimed from the Kati family of Egbe also in West Yagba and represented by the defendant on record parcel of land belonging to Ogbagbo family in Odo-Ere situated between Lawiri River and Okuta Gigiri hill on both left and right sides of the Federal Road leading from Kabba to Ilorin and between Odo-Ere and Egbe township. The Yagba Area Court Grade I after it carefully reviewed and evaluated the evidence led by both parties held as follows: From the facts above we are satisfied that the plaintiff was able to establish ownership of the land in dispute as the land of Odo-Ere and therefore the land between Lawiri River and Okuta Gigiri hill between Odo-Ere town and Egbe town is awarded to the plaintiff (Odo-Ere Community). The defendant, Egbe town who was aggrieved by the decision of the Yagba Area Court Grade 1, appealed to the Upper Area Court sitting at Lokoja. The court allowed the defendant's appeal, set aside the decision of the Yagba Area Court Grade 1 and ordered a re-trial of the case by the Upper Area Court, Ilorin. Both parties were dissatisfied with the decision of the Upper Area Court in Lokoja and appealed to the High Court in Lokoja sitting in its appellate jurisdiction. The court allowed the appeal of the defendant, set aside the decision of the Upper Area Court and the trial Area Court. The plaintiff's claim was dismissed by the High Court in Lokoja. On a further appeal by the plaintiff, Odo Ere town to the Court of Appeal, Kaduna Division, the judgment of the High Court was set aside and that of the Yagba Area Court Grade 1 was restored. The defendant, Egbe town further appealed the decision of Court of Appeal, Kaduna Division to the Supreme court.

Constitutional Principles in Bosnia and Herzegovina: Legal Theory and Judicial Deciding

The basic thesis of this essay is that constitutional principles and legal rules can have a meaning in judicial decision, when legal order imparts significance to judicial practice. Research and analysis of implementation of constitutional principles in the practice of courts in Bosnia and Herzegovina, especially in the practice of three constitutional courts, so far has not proved sufficient. To what amount the constitutional principles are used in direct implementation of constitutional principles, is just one of the questions that come up regarding this topic.
 It is also interesting and important to explore in what way the practice of the Constitutional Court of Bosnia and Herzegovina in deciding on the abstract constitutionality of laws and in appellate jurisdiction shows the application of legal principles in the decisions of the supreme courts of entities and Appellate court of Brčko district of Bosnia and Herzegovina. That is because some general principles are a part of the human rights and fundamental freedoms mentioned in the Constitution of Bosnia and Herzegovina. It should also be added that the practice of the European Court of Human Rights through its decisions in applying the Convention for the Protection of Human Rights and Fundamental Freedoms affects the practice of the supreme courts of entities and the application of the legal principles that are part of the Convention.

LITIGATION, THE ANGLO-SCOTTISH UNION, AND THE HOUSE OF LORDS AS THE HIGH COURT, 1660–1875

AbstractThis article examines the role of the House of Lords as the high court from the Restoration of 1660 to the passage of the Appellate Jurisdiction Act in 1876. Throughout this period, lay peers and bishops judged appeals on civil law from the central courts of England and Wales, Ireland (aside from between 1783 and 1800), and Scotland after the Union of 1707. It has long been known that the revolution of 1688–9 transformed the ability of parliament to pass legislation, but the increased length and predictability of parliamentary sessions was of equal significance to the judicial functions performed by peers. Unlike the English-dominated profile of eighteenth-century legislation, Scots constituted the largest proportion of appellants between 1740 and 1875. The lack of interaction between Westminster and Scotland is often seen as essential to ensuring the longevity of the Union, but through comparing the subject matter of appeals and mapping the distribution of cases within Scotland, this article demonstrates the extent of Scottish engagement. Echoing the tendency of Scottish interests to pursue local, private, and specific legislation in order to insulate Scottish institutions from English intervention, Scottish litigants primarily sought to maintain and challenge local privileges, legal particularisms, and the power of dominant landowners.

Article 133: Appellate Jurisdiction of Supreme Court in Appeals from High Courts in Regard to Civil Matters

(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies under Article 134A: (a) that the case involves a substantial question of law of general importance; and (b) that in the opinion of the High Court the said question needs to be decided by the Supreme Court. (2) Notwithstanding anything in Article 132, any party appealing to the Supreme Court under clause: (1) may urge as one of the grounds in such appeal that a substantial question of law as to the interpretation of this Constitution has been wrongly decided. (3) Notwithstanding anything in this article, no appeal shall, unless Parliament by law otherwise provides, lie to the Supreme Court from the judgment, decree or final order of one Judge of a High Court.

Brief of Professor Aditya Bamzai as Amicus Curiae in Support of Neither Party, Dalmazzi et al. v. United States

This amicus brief in support of neither party explains why the Supreme Court lacks jurisdiction to review cases from the Court of Appeals for the Armed Forces (CAAF). Though called a court by statute, the CAAF is located for constitutional purposes within the Executive Branch and does not exercise the judicial Power of the United States or of any sovereign. Chief Justice Marshall's opinion in Marbury v. Madison makes it clear that the Supreme Court cannot exercise appellate Jurisdiction under Article III directly from an officer of the Executive Branch. There is no basis in law or logic to distinguish between a single officer (James Madison in Marbury) and a body composed of multiple officers (the CAAF), even if the latter is designated a court by statute. Accordingly, the Court's exercise of jurisdiction over cases directly from the CAAF violates Article III. The brief canvasses a number of precedents in this area arising from cases involving military commissions, the Court of Federal Claims, petitions for writs of habeas corpus, the Court of Customs and Patent Appeals, and administrative agencies.

Supervision, Control, and Appellate Jurisdiction: The Experience of the International Court

Supervision, Control, and Appellate Jurisdiction: The Experience of the International Court

The Formation of Judicial Federalism in the United States

The central feature of American judicial federalism is the Supreme Court’s appellate jurisdiction over state courts. Conventionally, we tend to view controversy over judicial federalism through the lens of the Jeffersonian and Jacksonian eras, in which this appellate oversight functioned to consolidate the power of national institutions against the periphery and defenders of states’ rights promoted the independence of state courts from federal oversight. But the deliberative process that attended the formation of the federal judiciary exhibited a more complex dynamic that presented the framers of the Constitution and of the first judiciary act with a range of possible institutional arrangements. Given the available alternatives, the Supreme Court’s appellate oversight was not so much an aggression on states’ rights as a concession to those wary of consolidation. Rather than being contested, it in fact formed a ground of consensus as a modest means of ensuring federal supremacy.

Brief of Professor Scott Dodson as Amicus Curiae in Support of Neither Party, Hamer v. Neighborhood Housing Serv. of Chi. & Fannie Mae, No. 16-658 (S. Ct. 2017)

This case presents the question of whether the civil appellate deadline of Rule 4(a)(5)(C) is jurisdictional. In this blissfully short brief, I make two arguments advanced by neither party. First, I argue that a rule's jurisdictional character is not dependent upon labels or distinctions with claim-processing rules. Rather, a rule is jurisdictional when -- and only when -- it addresses a boundary between adjudicative bodies. Appellate jurisdiction, original jurisdiction, and personal jurisdiction all qualify because they address boundaries of authority among different adjudicative bodies. By contrast, a limit on court authority is nonjurisdictional when it speaks only to that court's authority, independent of other adjudicative bodies. Statutes of limitations, limits on punitive damages, statutory coverage, fee-shifting rules, inherent-power limits, and the like are nonjurisdictional because they speak only to a court's authority in isolation from other courts. Under this definition, the appellate deadline in Rule 4 is jurisdictional. Second, I argue that a rule's jurisdictional character does not determine its effects. rote belief that a jurisdictional limit is nonwaivable, nonforfeitable, and inexcusable is simply wrong. A rule has whatever effects the rule and other law provide. jurisdictional deadline to appeal in Sec. 2107(c), for example, may be extended according to judicial discretion, party conduct, and equitable circumstances: The district court MAY, UPON MOTION filed not later than 30 days after the expiration of the time otherwise set for bringing appeal, extend the time for appeal upon a showing of EXCUSABLE NEGLECT OR GOOD CAUSE. Thus, Rule 4(a)(5)(C)'s jurisdictional status does not mean that it cannot be forfeited by an appellee or extended for equitable reasons. Those questions, instead, must be answered by resort to ordinary principles of rule interpretation; they cannot be answered simply by resort to the Rule's jurisdictional character.

The Supreme Court of India: A People’s Court?

ABSTRACTThe consensus among scholars is that the Indian Supreme Court no longer acts as a court for the common person. Contrary to this view, we argue that the Court is still a court of the people in certain ways. We analyse by party and case type all cases decided by the Supreme Court from 2010 to 2014 under its special leave petition jurisdiction, and published in the case reporter Supreme Court Cases. The Court exercises significant discretion when deciding whether or not to admit cases pursuant to this appellate jurisdiction. However, we do not have information about the parties and types of cases that seek and are granted admission. To overcome this gap, we use the hit rate analysis method for deducing whether or not the Court grants easier access at the admissions stage to certain parties and case types. We find that the Court favours for admission individuals over the government in civil cases and defendants over the prosecution in criminal cases. It also favours cases that involve constitutional challenges over cases that don’t. Taken together, we argue that in these contexts, the court tends to favour weaker parties over stronger ones for access to the Court.

API Copyrightability Bleak House: Unraveling and Repairing the Oracle v. Google Jurisdictional Mess

Like Dickens’ tale of Jarndyce and Jarndyce, the Oracle v. Google litigation has droned on for what seems like generations in the software industry with no clear end in sight. The litigation is on an especially wasteful and perilous course due to its peculiar jurisdictional posture. As a result of patent infringement allegations lodged in the complaint, the Federal Circuit has exclusive appellate jurisdiction notwithstanding that neither party appealed the rejection of the patent causes of action. Hence, the only issues presented to the Federal Circuit were copyright issues governed by Ninth Circuit, as opposed to Federal Circuit, jurisprudence. The Federal Circuit misinterpreted Ninth Circuit (and general) copyright law, thereby steering the case into a needless fair use retrial. Congress did not provide a mechanism short of Supreme Court review for ensuring that the Federal Circuit properly interpreted regional circuit law. After tracing the history of the Oracle v. Google litigation and critiquing the Federal Circuit’s analysis, this article evaluates a range of potential reforms to the appellate jurisdictional mess presented by software intellectual property litigation and proposes several solutions to this Dickensian predicament.

Applying vs. Adopting Another Sovereign's Law

Familiar to all Federal Courts enthusiasts is the Erie distinction between the binding application of state law by federal actors and their voluntary adoption of state law as federal law. This Article’s thesis is that this significant distinction holds in all other situations where a sovereign employs another’s law: not only in the analogous reverse-Erie resolution of federal law’s constraint on state actors, but also in horizontal choice-of-law setting and even in connection with the status of international law. Application and adoption are different avenues by which to approach a pluralist world. Application means recognizing that the proper reach of the other sovereign’s law calls for it to govern by its own force, while adoption means voluntary consultation of the other’s law for reasons of fairness, convenience, or other local policies in formulating the local rule of decision. The applying/adopting distinction can be difficult to draw, but draw it we must because many binary practical consequences turn on it. Those consequences range beyond the implications of Erie and reverse-Erie to the modifiability of the other’s law and the availability of original and appellate jurisdiction in the local courts.

API Copyrightability Bleak House: Unraveling and Repairing the <I>Oracle v. Google</I> Jurisdictional Mess

Like Dickens’ tale of Jarndyce and Jarndyce, the Oracle v. Google litigation has droned on for what seems like generations in the software industry with no clear end in sight. The litigation is on an especially wasteful and perilous course due to its peculiar jurisdictional posture. As a result of patent infringement allegations lodged in the complaint, the Federal Circuit has exclusive appellate jurisdiction notwithstanding that neither party appealed the rejection of the patent causes of action. Hence, the only issues presented to the Federal Circuit were copyright issues governed by Ninth Circuit, as opposed to Federal Circuit, jurisprudence. The Federal Circuit misinterpreted Ninth Circuit (and general) copyright law, thereby steering the case into a needless fair use retrial. Congress did not provide a mechanism short of Supreme Court review for ensuring that the Federal Circuit properly interpreted regional circuit law. After tracing the history of the Oracle v. Google litigation and critiquing the Federal Circuit’s analysis, this article evaluates a range of potential reforms to the appellate jurisdictional mess presented by software intellectual property litigation and proposes several solutions to this Dickensian predicament.

The Judiciary in Myanmar: Beyond Reform?

The courts in Myanmar have been a topic of heated discussion in the post-2011 environment. Yet in contrast to many other areas of governance and administration, the courts are one sector where reform has been less evident or obvious. In fact, while many have been calling for greater judicial independence, the current framework in effect pulls in the opposite direction towards centralisation and executive-military control over the courts. This raises the broader question: what is the role of the courts in Myanmar post-2011? The three top parallel courts in Myanmar are the Constitutional Tribunal, the Courts Martial and the Union Supreme Court. The Constitutional Tribunal is a new institution introduced in 2011, but has heard only about 11 cases, has been marginalised and therefore lacking in political influence. The Courts Martial are a black hole in terms of academic research, given the difficulties of obtaining access to information on these courts. The Supreme Court is therefore the most active, dealing with hundreds of cases per year, and is perhaps the most politically influential court of the three. This chapter therefore focuses on the role and function of the Supreme Court, and the courts below it, under the quasi-civilian regime. The literature around the role and politics of courts, and of courts in authoritarian regimes, is vast and complex (see for example Ginsburg and Moustafa 2008). In this chapter I unpack the role of the courts in Myanmar and its relationship to the other institutions of governance. First, I show how the composition of the Supreme Court points to the influence of the executive over the courts. Second, the authority of the Supreme Court in terms of its original and appellate jurisdiction, and its reporting, law- making and supervisory functions are focused on keeping the lower courts in-line. Third, the new authority the Supreme Court has to hear cases concerning complaints against government decisions is a form of procedural authoritarianism to keep lower courts in check. Finally, I show how the court’s jurisdiction is subject to change by parliament, and recent legislation affecting family law will raise new and difficult social and legal questions for the courts in the future.

Dizzying Gillespie: The Exaggerated Death of the Balancing Approach and the Inescapable Allure of Flexibility in Appellate Jurisdiction

In Gillespie v. U.S. Steel Corp., the Supreme Court appeared to endorse a balancing approach to federal appellate jurisdiction, whereby courts could weigh the costs and benefits of an interlocutory appeal in any case. But the Court soon disavowed the balancing approach and today eschews case-by-case determinations of appellate jurisdiction. The common perception, then, is that Gillespie and the balancing approach are dead. But the balancing approach persists in the Courts of Appeals. In a variety of contexts, these courts have relied on the balancing approach to hear appeals. They’ve constructed doctrines based on the balancing approach. And they engage in case-by-case balancing in determining their jurisdiction. Contrary to popular belief, the balancing approach is alive and well in the Courts of Appeals.The balancing approach’s persistence — seemingly in direct defiance of the Supreme Court’s mandate — suggests that appellate judges cannot resist wielding some discretion when defining their jurisdiction. This allure of discretion poses a challenge to the primary goal of the literature on interlocutory appeals: reform. If reform is to happen, it will likely take the form of categorical rules. But if what the balancing approach’s persistence suggests is true — if appellate judges cannot completely forego using discretion in defining their jurisdiction — that threatens to undermine the certainty, predictability, and ease of application of any rules that reform might develop. I thus propose a largely novel approach to interlocutory appeal reform: a combination of categorical rules and a discretionary catchall.

Historical Gloss, Constitutional Conventions, and the Judicial Separation of Powers

Scholars have increasingly focused on the relevance of post-Founding historical practice to discern the separation of powers between Congress and the executive branch, and the Supreme Court has recently endorsed the relevance of such practice. Much less attention has been paid, however, to the relevance of historical practice to discerning the separation of powers between the political branches and the federal judiciary—what this Article calls the “judicial separation of powers.” As the Article explains, there are two ways that historical practice might be relevant to the judicial separation of powers. First, such practice might be invoked as an appeal to “historical gloss”—a claim that the practice informs the content of constitutional law. Second, historical practice might be invoked to support non-legal but obligatory norms of proper governmental behavior, something that Commonwealth theorists refer to as “constitutional conventions.” To illustrate how both gloss and conventions enrich our understanding of the judicial separation of powers, the Article considers the authority of Congress to “pack” the Supreme Court, and the authority of Congress to “strip” the Court’s appellate jurisdiction. This Article shows that, although the defeat of Franklin Roosevelt’s Court-packing plan in 1937 has been studied almost exclusively from a political perspective, many criticisms of the plan involved claims about historical gloss; other criticisms involved appeals to constitutional conventions; and still others blurred the line between those two categories or shifted back and forth between them. Strikingly similar themes emerge in debates in Congress in 1957-58, and within the Justice Department in the early 1980s, over the authority of Congress to prevent the Court from deciding constitutional issues by restricting its appellate jurisdiction. The Article also shows, based on internal executive branch documents that have not previously been discovered or discussed in the literature, how Chief Justice John Roberts, while working in the Justice Department and debating Office of Legal Counsel head Theodore Olson, failed to persuade Attorney General William French Smith that Congress has broad authority to strip the Court’s appellate jurisdiction. The Article then reflects on the implications of gloss and conventions for the judicial separation of powers more generally.

Call for the Views of the Solicitor General in Original Jurisdiction Proceedings: Solicitor General as Advisor or Advocate?

The Call for the Views of the Solicitor General (CVSG) is not a new tool in the Supreme Court’s arsenal and it has been utilized by the Court for decades in the exercise of its appellate jurisdiction. Interestingly, it is even more commonly used in the Court's original jurisdiction, particularly at the motion for leave to file stage. The Court issuing CVSGs at this early stage in original jurisdiction proceedings could have dramatic implications: in the case of states, because the Court has original and exclusive jurisdiction, an opportunity to be heard in front of the Supreme Court is their only chance at a day in court. A CVSG could be a powerful tool in determining whether parties will get recourse. Out of 140 cases between states that the Court has rendered a decision on, 17 involved a CVSG. Moreover, a quarter of those 17 cases where the Court has issued a CVSG in an interstate proceeding have occurred in the past five years. The Court seems to be turning to this device more often in original jurisdiction proceedings than it has in the past. In most of these cases, however, it’s likely not contentious. It’s not unusual for the Court to defer to the SG with a CVSG in matters concerning complex regulatory or sovereignty issues. Of these 17 cases, 16 deal with standard original jurisdiction subject matter: resource law, boundary issues, etc. For the Court to engage the objective advisory function of the SG in these types of cases is not only probably innocuous, but likely beneficial. The issue lies not in the trend of the higher frequency of CVSGs in original jurisdiction proceedings, but rather in circumstances when the CVSG is issued where it is difficult, if not impossible, to discern whether the Court is seeking to engage the SG as an objective advisor or as an advocate of the United States. Nebraska & Oklahoma v. Colorado is just a case. Nebraska and Oklahoma are seeking relief under the Supremacy Clause from Colorado’s enforcement of its recreational marijuana regulatory scheme in violation of the Controlled Substances Act. This case is wholly unlike other original jurisdiction proceedings where a CVSG has been issued, and given the complex federalism issues implicated by the subject matter, in addition to policy concerns with which the DOJ has been directly involved, it is difficult to imagine how the SG’s advocacy role would not be engaged in such a brief to the Court. This paper will argue that a CVSG at this early stage, in a proceeding where federal interests are so clearly entangled, should be met with wariness. The Court asking the advocate of the federal government whether Nebraska and Oklahoma should get to have their day in Court ought to raise suspicion. With this case being singularly unique, perhaps it is anomalous, and maybe even an appropriate use of the CVSG on balance. Or perhaps it, like the increase of the CVSG in original jurisdiction proceedings on the whole, is the beginning of a trend that could have major implications for the justiciability of claims between states before the Court.

Statutory Exceptions at British Law: Implications for the Appellate Jurisdiction of the United States Supreme Court

This article revisits the literature on Congress’s ability to control the jurisdiction of the Supreme Court. It finds evidence that the well-known references in Article III to “exceptions” and “regulations” were legal terms of art in pre-1789 British law. An examination of the case law demonstrates that English and Scottish supreme courts always retained a certain quantum of supervisory jurisdiction over inferior courts, even when Parliament made an “exception” or “exemption” (a synonymous term) to the supreme court’s appellate jurisdiction. This quantum of supervisory jurisdiction extended not only to the power to enforce adherence to the supreme court’s prior precedents, but also to the power to resolve differences of opinions among courts as to statutory interpretations (something we often now encounter in the context of “circuit splits”) and to correct obvious misinterpretations of the law and fundamental denials of due process rights.

The Convergence of form and Function: Commentary on Dixon

In the very first decision reported in the Commonwealth Law Reports, Griffith CJ, Barton and O'Connor JJ mooted whether an appeal lay to the Court from a judgment given after the coming into force of the Constitution but before the coming into force of the Judiciary Act 1903 (Cth). The Constitution, from 1 January 1901, vested the judicial power of the Commonwealth in the High Court and made provision for the appellate and other jurisdiction of the Court. But only the Judiciary Act 1903 (Cth), from 25 August 1903, 'actually constituted' the apparatus and the machinery of the Court; the appellate jurisdiction 'could not, of course, be exercised' before then. The question presented, 'one of difficulty and importance', ultimately did not need to be resolved because leave to appeal would be refused on other grounds in any event.3 Nonetheless, the Court articulated the reasons that supported each of the competing views of the operation of ss 71 and 73 of the Constitution. There was said to be much force in the contention that the jurisdiction of [the lower courts] was, from the first, intended to be subject to the right of appeal to the High Court, and that that right, being a right conferred by the Constitution itself upon suitors, could not be lost or taken away by mere inaction of the Parliament.

Disagreement on the Brazilian Supreme Court: An Exploratory Analysis

In this paper we examine the decision-making of the Brazilian Supremo Tribunal Federal using a novel dataset of individual-level votes in collegiate decisions issued between 1992 and 2013. In doing so we find limited evidence of greater cohesiveness or lower propensity to dissent among professional judges appointed to the Court than appointees with other legal backgrounds. There are, however, indications of two partisan voting blocs: appointments made by President Fernando Henrique Cardoso and the pre-1985 military government. We also find systematic differences in cohesion across the three jurisdictions of the Court: cases involving abstract review are the most divisive while those based on the Court’s appellate jurisdiction are the least. However, when only the decisions of the plenary court are considered, the appellate jurisdiction is the most divisive. We also find a negative relationship between dissent and caseload, a positive correlation between court size and willingness to dissent and, in contrast to expectations, that greater variation in who appointed the members of the Court was associated with a more cohesive court. With respect to institutional reform, there is evidence to suggest that the introduction of television cameras into the plenary sessions of the Court resulted in a higher level of agreement. However, the effect appears to have been temporary. Contrary to previous findings we find that the introduction of weak forms of precedent via constitutional amendment is not correlated with a decline in overall cohesion on the plenary court. We also find that an increased level of ideological difference in the governing coalition of the federal government is correlated with increased disagreement on the court, a relationship that is supportive of the idea of strategic decision-making on the Court.