Appellate Procedure Research Articles

The State Can Rest: Texas Rule of Appellate Procedure 44.2(b) and "Harmless" Error

This Note will outline the contours of Rule 44.2(b) by examining: (1) the reasons and motivations behind the adoption of the new rule; (2) the case law interpreting the new standard contrasted against the old rule; and (3) the potentialities inherent in the new rule for harm to the rights of the accused. Finally, this Note will illustrate why, in the interest of justice, the new rule should be discarded in favor of the old rule.

A New Era Dawns in Appellate Procedure

A New Era Dawns in Appellate Procedure

Recent Developments in Indiana Appellate Procedure: New Appellate Rules, a Constitutional Amendment, and a Proposal

Recent Developments in Indiana Appellate Procedure: New Appellate Rules, a Constitutional Amendment, and a Proposal

Taller and Better Looking Judges in Texas

This article provides a view from the bench as to what trial judges face in properly handling Robinson Challenges when advocates bring them to the courtroom, and the possible effect on the litigation process. Part I identifies the various admissibility standards applied in Texas before Robinson, and outlines the standards used in other state courts. Next, Part II details the implications the Robinson decision may have on Texas trial practice, and its effect on lawsuits that involve scientific evidence. Finally, Part III examines the implications of Robinson for appellate procedures. We conclude the striking of a witness is most problematic when he is the sole expert witness on causation, thus vital to the trial advocate's case.

Pratt and Another v. Attorney-General for Jamaica and Another

335Human rights — Inhuman and degrading treatment or punishment — Death penalty — Murder — Prolonged delay between sentence and execution — “Death row” phenomenon — Section 17(2) of Jamaican Constitution, 1962 — Whether to be construed narrowly — Recourse of applicants to available appellate procedures — Whether reasonable — Failure of Jamaican system — Whether delay amounting to inhuman or degrading punishment or other treatment contrary to Section 17(1) of Jamaican Constitution, 1962 — The law of Jamaica

(6) Appellate Procedure in Hight Courts

(6) Appellate Procedure in Hight Courts

Developments in the Erie Doctrine: 1991

The Supreme Court decided three cases during its October 1990 term that fit under the general rubric of the Erie doctrine. The cases are Business Guides v. Chromatic Communications Ent.,' Chambers v. NASCO, Inc. ,2 and Salve Regina College v. Russell.3 None of the cases clarify the condition of prior law significantly except Salve Regina College, which involves an important matter concerning the administration of state law in diversity actions. Before the 1990 term, the Supreme Court's last major analysis of conflicts between Federal Rules of Civil Procedure and state law, which is the subject of Business Guides, occurred in Burlington Northern Railroad v. Woods.4 In Burlington Northern, the Court found Federal Rule of Appellate Procedure 38 to be in conflict with an Alabama statute, but affirmed the validity of Rule 38 under the Rules Enabling Act, 28 U.S.C. ? 2072. The Court held that a rule promulgated under 28 U.S.C. ? 2072 does not abridge, enlarge or modify any substantive right within the meaning of the statute, if the rule only incidentally affect[s] . . . substantive rights and is reasonably necessary to maintain the integrity of [the uniform and consistent system of procedure that it was the purpose of Congress to authorize under the Act].5 Thus, the Court appeared to be establishing a balancing test that would measure the validity of a Federal Rule in part by how much the rule encroached on state substantive policies and in part by how much the rule was necessary to the uniform scheme of federal procedure. In Business Guides, the Court addressed a challenge to the validity of Fed. R. Civ. P. 11 as applied to a represented party who had signed a document in violation of the rule, but in good faith. As always when Federal Rules of Civil Procedure have been challenged

(7) Appellate Procedure in High Courts

(7) Appellate Procedure in High Courts

Austrian Public Policy and the Enforcement of Foreign Arbitral Awards

the 1983 Amendment to the Austrian Civil Procedure Law1 had the purpose of facilitating the recognition and enforcement of foreign arbitral awards.2 Shortly before it became fully operative, the Austrian Supreme Court rendered a decision3 which appeared contrary to the purpose of the amendment. Some passages of the decision might be interpreted as not having been affected by the changes brought about by the 1983 Amendment. It is submitted, however, that at least after this reforming amendment, the restrictive provisions of the Supreme Court decision should no longer be applied to international arbitrations. Such an attitude would be in conformity with the prevailing spirit of liberalism in this matter, which has led, not only to the 1983 amendment in Austria, but also to changes in the relevant French4 and British5 legislation. The case before the Supreme Court concerned the request for the enforcement of two awards (Award No. 276 of 10 August 1981 and Award No. 9 of 11 January 1982) rendered in an appellate procedure in Amsterdam by the VAG (‘Vereniging Amsterdamse Graanhandel’ or ‘Amsterdam Graintraders Association’) in a dispute between a Rotterdam import and export firm and an Austrian company. The dispute arose out of contracts governed by Dutch law, which permits the Vernof conditions appearing in these contracts. The party which, pursuant to the awards, was obliged to pay DM 677,050 to the other party objected to enforcement of the awards in Austria. According to the objecting party, the contracts did not provide for the delivery of grain at a future date as they purported to do. The terms of the contracts were said to camouflage only imperfectly the fact that the contracts in reality envisaged a Differenzgeschaft , i.e. the mere payment of the difference between the prices quoted for grain …

Appellate and trial court caseload growth: A pooled time-series-cross-section analysis

This is an econometric study of factors behind filing growth since 1970 in state trial courts and, especially, appellate courts. The model posits two categories of variables: those affecting the supply of disputes and those affecting the costbenefit considerations of potential litigants. The study uses a pooled time-seriescross-section design and a fixed-effects regression procedure. The overall conclusion is that factors determining the supply of disputes overwhelm other factors entered in the model. At the trial level, economic conditions 2 years earlier strongly affect civil filings, and crime rates for the current and prior year have moderate impacts on criminal filings. The output capacity of trial courts, measured by the number of judges, has a strong impact on appeals. Economic conditions and trial court filings influence civil appeals in later years, and prison commitments influence criminal appeals. The great majority of cost-benefit factors, such as simplification of appellate procedure and interest-rate differentials, showed little or no impact on appeals.

Appellate Procedure: Are We Playing the Game Without a Complete Set of Rules?

Appellate Procedure: Are We Playing the Game Without a Complete Set of Rules?

The Civil Appeals Management Plan: An Experiment in Appellate Procedural Reform

Today, it is common to point to the dramatic growth in the business of federal courts over the last fifteen years.' While growth in court business is nothing new,2 the increase in the workload of the federal courts of appeals during the last two decades has been unprecedented.3 Demands for the services of the federal appellate courts seem to have outstripped the available supplies. In an effort to deal with the problem, the United States Court of Appeals for the Second Circuit, under the direction of Chief Judge Irving R. Kaufman, decided to experiment with an idea that might avoid both the Scylla of taking appellate shortcuts 4 and the Charybdis of increasing the number of judges beyond its present, and perhaps optimal, level 6 of nine active appellate judges. In Judge Kaufman's experience, many of the civil cases appealed to the Second Circuit seemed amenable to resolution short of a decision on the merits by a panel of appellate judges. Although no court of appeals had ever made efficacious and systematic use of preheating conferences to encourage informal dispute resolution, rule 33 of the Federal Rules of Appellate Procedure seemed to provide sufficient authority for court-ordered settlement discussions at the appellate level.6 Judge Kaufman reasoned that intervention

Preparation and Argument of the Criminal Appeal

is not entirely a narrative account of facts. Technically, the abstract is the pleading in the reviewing court. What is sought to be reviewed must be contained therein. 5 Thus, the abstract must also set forth, in verbatim or encapsulized form, those portions of the proceedings in the trial court which are necessary to present fully every error relied upon-e.g., pleadings which are to be the focus of an issue raised in the brief and specific objections and rulings thereon, or prejudicial comments by opposing counsel. Some jurisdictions, however, require thepreparation of an appendix rather than an abstract. This form is distinguished by a verbatim account of the pertinent portions of the record rather than a narrative account, although in many instances it is sufficient to narrate or even paraphrase less important matters. Nevertheless, the appendix basically consists of a verbatim recitation of the essential facts and proceedings which must be brought to the attention of the reviewing court. Both the appendix and the abstract may be distinguished from other methods of summarization by one principal factor: although summarizations, they purport to tell the total story of the proceedings in the trial court.6 That story must be 65 Gage v. City of Chicago, 211 Ill. 109, 71 N.E. 877 (1904). 66See, e.g., former SEVENTa CiR. R. 10(b), 28 U.S.C.A., which also permitted the evidence to be abstracted or reduced to narrative form. This rule has been superseded by the Federal Rules of Appellate Procedure and especially Rule 30. As a consequence, there is presently no provision in the Federal Rules, or in the rules of the various circuits, permitting a party to file an appendix to which the evidence is abstracted or reduced to narrative form. 7Most rules contain a statement such as: Matters in the record on appeal not necessary for a full understanding of the question presented for decision shall not be abstracted. The abstract need only be suffcient to present fully every error relied upon. It. S. CT. R. 342(e) (4). As a practicalmatter most abstracts and appendices are composed with an emphasis placed on the word fully. An appendix drawn under Rule 30(e) of the Federal Rules, which directs that the ppendix contain of the record to which the pris wish to direct the particular attention of the court, would not purport to tell the total story of the proceedings in the trial court. And the parties need not be concerned lest they omit some important aspect of the proceedings, for Ilthe fact that parts of the record are not included in the appendix shall not prevent the [Vol 62

Appellate Courts in the United States and England

This book grew out of an experiment in Anglo-American legal study, in which distinguished American and English jurists studied the appellate courts of each other's countries, with a view to improving such courts in their own. Professor Karlen describes in detail the tribunals observed, and in a final chapter compares and contrasts appellate procedures in each country.

The Canon Law as a Legal System - Functions, Obligation, and Sanction

pursuit of justice was allowed to overshadow the necessities of the concrete pursuit of justice through the mechanics of a legal system. The same didacticism affected other aspects of the canonical system, albeit not always in as obvious ways. We see it, for instance, in the area of appellate procedure where the canon law seems to show less concern than either the Roman law or the medieval English law with using appeals to elicit the best decision the system is capable of affording, more with using 19. C. 5, X, II, 26. 20. Can. 41, 4 Lateran 1215, 22 MANSI 1027, c. 20, X, II, 26. 21. Naz, loc. cit. supra note 18. 22. Gaius in DiGEST bk. 41, title 3, law 1.

Appellate Procedure in Virginia under the Rules of Court

Appellate Procedure in Virginia under the Rules of Court

Operation of Appellate Procedure in Pennsylvania Criminal Cases

Operation of Appellate Procedure in Pennsylvania Criminal Cases

Present and Potential Role of Certification in Federal Appellate Procedure

Present and Potential Role of Certification in Federal Appellate Procedure

Libel. Judicial Immunity. Report of Judicial Proceeding. Appellate Procedure. Raising of a New Defense on Appeal

Libel. Judicial Immunity. Report of Judicial Proceeding. Appellate Procedure. Raising of a New Defense on Appeal

Appellate Procedure in Civil Cases. By Roscoe Pound. (Boston: Little, Brown and Company. 1941. Pp. xi, 431. $5.00.)

Appellate Procedure in Civil Cases. By Roscoe Pound. (Boston: Little, Brown and Company. 1941. Pp. xi, 431. $5.00.)