Intermediate Appellate Courts Research Articles

Domestic Violence Survivors and the Intermediate Appellate Courts

Domestic Violence Survivors and the Intermediate Appellate Courts

An Introduction to Pennsylvania Legal Research for Academic Librarians and Researchers

This article reviews electronic Pennsylvania legal research resources available to academic librarians and researchers, the structure of the Pennsylvania state government, and the types of information published by each branch of the government. The executive branch publishes the Pennsylvania Bulletin (the state’s administrative register) and the Pennsylvania Code (the state’s administrative code). The laws passed by the Pennsylvania state legislature are codified in two separate statutory codes: Pennsylvania Consolidated Statutes and Pennsylvania Statutes. The legislature also publishes legislative history for statutes that can help to determine the intent of the legislature when the law was passed. The Pennsylvania courts consist of trial courts, two intermediate appellate courts, and a supreme court. All levels of courts publish case decisions and rules to govern court procedure. Citators help to determine whether a case decision is still valid.

Partisanship and Polarization in State Court Vacancies

Backlogs and long delays in the confirmation of federal judicial nominees have become a common occurrence in Washington, leaving many federal benches understaffed and overworked. While this phenomenon has been well studied at the federal level examining political and institutional factors at play beyond senatorial courtesy, little is known if delay occurs in court systems of the individual American states, or how extensive the obstruction and the delay should it occur. We examine judicial appointments in states having the selection system of gubernatorial nomination and legislative confirmation. We focus on the duration of the judicial vacancies on state intermediate appellate courts and courts of last resort from 2000 to 2016 and explain the variation over time in the length of this process. We show that partisan division and increases in the polarization of state political parties work together to influence timely staffing of these critical institutions in the American states. Ultimately, these findings offer insight into the issues caused by political gridlock over judicial selection and offer practical institutional remedies to this problem.

New York Redefines “GAMBLING” … and What Could this Mean for Poker?

New York Redefines “GAMBLING” … and What Could this Mean for Poker?

Should Judges Join In? A Normative Study of Joint Judgments in Selected Australian Intermediate Appellate Courts

In the light of both the Chief Justice of the High Court of Australia Susan Kiefel’s extra-judicial comments on the ‘institutional responsibility’ of appellate courts to decide cases by joint judgment where possible, and literature that indicates an increase in the expression of reasons through joint judgment in the High Court of Australia since the beginning of former Chief Justice Robert French’s tenure, there has been much debate on the desirability of joint judgments. In this article, I present empirical information on selected New South Wales and federal intermediate appellate court judgment writing practices from 2009 to 2019. I do so to address former President of the New South Wales Court of Appeal Margaret Beazley’s ‘dalliance on a curiosity’1 concerning both joint judgment trends and whether Australian intermediate appellate courts should, given the example set by certain Justices of the High Court, preference joined reasons to separate individual concurrences.

‘I beg to differ’: Are our courts too agreeable?

If dissenting judgments perform a valuable function in the administration of justice, too little dissent may indicate that the administration of justice is not reaping the benefits of dissent. South Africa belongs to the common-law tradition, which has always allowed dissenting judgments. The civil-law system traditionally did not, and this is still the position in many countries. In the modern era, considerations of transparency and accountability favour the disclosure and publication of dissenting judgments. Although they can play a role in the development of the law, their most valuable function is to improve the quality of judicial output by requiring majority judgments to confront the dissenting judgments’ reasoning. Factors which may affect the extent of dissent in appellate courts include case complexity and control over rolls; panel sizes; judicial diversity, personality and turnover; court leadership; research resources; modes of judicial interaction; and protocols on the timeliness of judgments. Data on dissent in South Africa’s Constitutional Court, Supreme Court of Appeal and Labour Appeal Court, as well as in the United Kingdom, Australia, Canada and the United States, suggest that there is less dissent in our intermediate appellate courts than might be expected. Changes in work procedures could yield a healthier pattern.

Fraud Is Now Legal in Texas (For Some People)

Three intermediate appellate courts in Texas have held that corporate actors— directors, officers, managers, shareholders, and probably common employees and agents—are immune from personal liability for fraud that they themselves commit as long as their deceit relates to or arises from a contractual obligation of the corporation. Similar actors in limited liability companies also enjoy immunity. These courts do not require that the business entities themselves be liable for the fraud. When the entities are not liable, these new holdings leave fraud victims no remedy at all, even if a jury would find fraud. One (or maybe two) Texas appellate courts have held otherwise. The Supreme Court of Texas will probably decide the issue, and one justice has already signed on. To date, these decisions have only been noticed in print by a few practicing attorneys. No commentator has questioned them. But the decisions are wrong. These courts claim to be following a statute, but the statute does not support the courts’ analysis. Nor does the statute’s legislative history. Surprising (and probably unnoticed) results strongly suggest the legislature never intended this reading. And what rationale could justify it? Fraud is the economic equivalent of theft. Practitioner comments on the decisions suggest that the cost of litigating fraud is too high. Texas’s reputation for pro-business policies might suggest this move is just helpful de-regulation, but it is not. Policing fraud is the only way to make markets safe for freedom of contract, and litigating fraud claims is the courts’ role. These decisions should be abandoned before they become the law in all of Texas and elsewhere.

California’s First Judicial Staff Attorneys: The Surprising Role That Commissioners Played, 1885–1905, in Creating the Courts of Appeal

In the late nineteenth and early twentieth centuries, the California Supreme Court employed legal staff — then called “commissioners” — quite differently from how it uses chambers attorneys and law clerks today. Controversy surrounding that former system led to creation of the Court of Appeal. The story unfolds like a Gilbert & Sullivan operetta: The Supreme Court, regularly traveling up and down the state hearing oral arguments in San Francisco, Sacramento, and Los Angeles, was chronically unable to keep pace with an increasing influx of direct appeals from numerous trial courts. After the Legislature directed the court to hire “commissioners” to help with its workload, a few thousand opinions authored and signed by the court’s new staff were published in the California Reports — and approximately 700 more were published, along with hundreds of other unreported Supreme Court opinions, in the reports of “California Unreported Cases.” There were public accusations of overreaching by the staff commissioners and abdication of judicial responsibility by the justices, culminating in major litigation by a disgruntled appellate lawyer — ultimately upholding the court’s authority to use legal staff. The hired staff commissioners and elected justices played musical chairs, trading places numerous times — appearing to confirm criticisms that they were inappropriately interchangeable. Meanwhile, and amidst growing calls for the state to create an intermediate appellate court, the Supreme Court remained backlogged even with help from the staff commissioners. Finally, after nearly two decades, there was an agreement to jettison the criticized staff commissioner system, and to forbid its use ever again — paving the way for the voters’ acceptance of a constitutional amendment to create the California Courts of Appeal. When the music stopped, all remaining staff commissioners became appellate court justices.

Rulemaking by Fiat in a Most Unsuitable Case: A Critique of the Texas Supreme Court's Creation of a Catchall Sham Affidavit Rule in Lujan v. Navistar, Inc. (Tex. 2018)

In Lujan v. Navistar, Inc. the Texas Supreme Court incorporated the federal sham affidavit doctrine into Texas summary judgment practice and turned the doctrine into a rule. Although this change in civil procedure could have been accomplished through the rule-revision process, the adoption of the doctrine through a precedent-setting opinion is not particularly remarkable because a number of intermediate courts of appeals in Texas had already recognized it. CASE CITE IN SOUTHWESTERN REPORTER AND WESTLAW: Lujan v. Navistar, Inc., No. 16-0588, 555 S.W.3d 79, 2018 WL 1974473 (Tex. Apr. 27, 2018)(sham affidavit doctrine adopted as part of summary judgment practice and adjudication in Texas) What is remarkable is that the Texas High Court blessed the statewide application of the doctrine in a case that did not even present a conflict in the same party’s deposition testimony and affidavit on the dispositive issue for summary judgment motion at issue (nontransfer of ownership of trucks from individual to a corporation of which the same individual was the sole owner, which was the pivotal issue for purposes of legal standing). The conflict the Court found significant was instead based on extrinsic tax-related documents and on a transcript of attorney argument in open court from a hearing on a pretrial motion unrelated to the motion for summary judgment. By recognizing the materiality of these other forms of evidence to the sham determination, the Court fundamentally altered the character and scope of the sham affidavit doctrine. It also rejected the elements of the test that intermediate appellate courts in Texas had used to determine whether the doctrine should be applied in a particular case; a test that involved the comparison and evaluation of the substance of the affidavit and the substance of the prior deposition on the material fact question at issue. The reliance on evidence other than the party’s deposition then allowed the Court to assert that it was not overruling existing Texas Supreme Court precedent that stands for the proposition that inconsistent deposition testimony may not be given effect over a summary judgment affidavit, and that a conflict between the two creates a fact issue for the trier of fact, rather than a sham issue that the trial court may resolve summarily. See Randall v. Dallas Power & Light, 752 S.W.2d 4 (Tex. 1988); Gaines v. Hamman, 358 S.W.2d 557 (Tex. 1962). The Texas courts of appeals will soon have to grapple with how Texas trial courts are to exercise—and not abuse--their vastly expanded discretion under the summary judgment regime as judicially amended by Lujan, without accompanying guidance or a clear set of criteria on how to go about determining the existence of a sham sufficiently serious to warrant disregard for the affidavit and grant of summary judgment for the movant. Although Lujan v. Navistar makes the sham affidavit doctrine viable throughout the state, it provides no guidance as to how the trial courts are to handle the vastly increased array of potentially sham-relevant evidence that may now be considered under an infinite set of case-specific circumstances; when and in what form such evidence should be proffered within the timeframes that govern summary judgment motions and responses; and how pertinent exculpatory evidence may be offered by the party accused of having run afoul the sham affidavit rule. The Texas Rules of Civil Procedure do not permit an evidentiary hearing on motions for summary judgment and many are upon submission without an oral hearing even merely for argument. By acknowledging that each case is unique and that the caseload as a whole is diverse in the particulars, the Lujan opinion itself makes a good case for the leaving the matter of amending the summary judgment rules to the Court’s rule-making process, rather than devising a new rule to fit the idiosyncrasies of a particular case brought before the Court for a decision.

The Canadian Law of Judicial Review: Some Doctrine and Cases

It is hard to find a useful, up-to-date summary of the Canadian law of judicial review. This summary attempts in a scholarly way to fill that gap. It attempts to work at two levels: the level of basic concept and the level of detail. First, it describes the basic ordering concepts in the Canadian law of judicial review. Then it proceeds to the three analytical steps to determine an application for judicial review: preliminary and procedural concerns, the merits of the judicial review (review for substantive defects and procedural defects), and remedies. Finally, it examines appeals from applications for judicial review. Along the way, key Canadian cases are referenced and discussed. A few are critiqued. The cases include major Supreme Court of Canada cases that strongly influence the law and cases from other courts that offer further instruction on that law. Many of these cases are from the Federal Court of Appeal, the intermediate appellate court that decides more administrative law cases in Canada than any other appellate court. Some cases from other jurisdictions are referenced and discussed for comparative purposes. Some academic commentaries and articles are also referenced and discussed. To facilitate study, all cases and articles are hyperlinked to online full-text versions (where available). The reader is warned that this is only a summary and regard should be had to its date. It is no substitute for competent, specific legal research on a particular issue. Nevertheless, it is hoped that this summary will enrich readers' understandings and stimulate them to consider, reflect upon and make their own valuable contributions to the doctrine.

Why judges should dissent

This article discusses why judges at intermediate appellate courts should dissent when they are in disagreement with their colleagues as to either the outcome of a case or the reasons given to reach a particular decision. The authors argue that dissenting judgments promote individual judicial responsibility and demonstrate transparency as to how a decision was reached by a panel of judges. They also describe how dissenting judgments have the ability to potentially shape the law at different courts, including international courts. The article goes on to describe the challenges judges face when deciding whether to dissent. Specifically, the authors discuss how the politicization of judgments, the indeterminacy of decisions, and the fracturing of collegiality within a court can deter judges from writing a dissenting judgment.

"On Behalf of His Race and the Lemmon Slaves": Louis Napoleon, Northern Black Legal Culture, and the Politics of Sectional Crisis

"On Behalf of His Race and the Lemmon Slaves"Louis Napoleon, Northern Black Legal Culture, and the Politics of Sectional Crisis Sarah L. H. Gronningsater (bio) In the fall of 1852, a free black New Yorker named Louis Napoleon upended the plans of a Virginia couple, Jonathan and Juliet Lemmon, who were hoping to move to Texas with their seven children and eight slaves. The household had sailed to New York City in order to make a steamship connection to New Orleans—at the time, this was one of the fastest routes to the Southwest. Their itinerary, however, presented a problem: New York was technically free soil. The state legislature had made this assertion of territorial sovereignty explicit in an 1841 statute. A strict reading of this law forbade the Lemmons from holding slaves within New York's borders, even for a few hours. Napoleon, a black laborer, wanted a local court to free the Lemmon slaves in accordance with the statute's emancipatory implications.1 The morning after the Lemmons' ship docked in New York, Napoleon petitioned for a writ of habeas corpus from Judge Elijah Paine of the city's Superior Court. Paine granted the request, summoning Jonathan Lemmon and the eight slaves to his bench. Three days later, a contentious trial was underway. The slaves were represented by Napoleon's long-time ally, the prominent abolitionist John Jay, grandson of the founding father, and Erastus D. Culver, a former Whig congressman. As Jay and Culver sparred with opposing counsel, dozens of black men, women, and children gathered in the courtroom to watch. On November 13—a week after the Lemmons' arrival—Paine discharged the slaves. "The laws of the State of New York," he explained, "render it impossible that such property should exist within those limits."2 The black audience was elated. The New-York Tribune reported that "the eight persons were placed in coaches by Louis Napoleon" and "driven off amid great cheering." In December, with the quiet assistance of regional abolitionists, the freed slaves moved to Canada. Members of New York's merchant community raised $5,000 to compensate the Lemmons for their lost property, which the couple accepted.3 [End Page 206] Widely publicized, the Lemmon case quickly achieved national significance. When the Lemmons appealed Paine's decision to the First District of New York's Supreme Court—the state's intermediate appellate court—Virginia governor Joseph Johnson convinced his legislature to fund the costs. New York's legislature responded in kind, asserting the state's right to determine the status of people on its soil.4 In 1857, the First District reviewed the case. The timing was fraught: not only was Bleeding Kansas fresh in the public's mind, but the U.S. Supreme Court had just issued its ruling in Dred Scott, a decision that bolstered the rights of slaveholders and injured those of black Americans. The Lemmons' lawyers, eager to exploit the connections between the cases, argued that slaves were property protected by "the federal constitution" and that the doctrines of Dred Scott "must be maintained."5 The First District disagreed, affirming the original ruling. The Lemmons, with Virginia's support, appealed again, hoping that New York's highest court—the Court of Appeals—would concede a master's constitutional right to travel nationally with his slaves.6 By petitioning for the writ of habeas corpus, Napoleon had triggered the emancipation of eight slaves, precipitated a series of controversial court cases, and provoked interstate political battles. Yet by the winter of 1857–58, Napoleon agreed with Jay that it was in the best interest of the antislavery movement to shut Lemmon down; the two allies wanted the Court of Appeals to dismiss the case. In January, Jay sent New York's Republican governor, John A. King, a petition he had written in Napoleon's name, titled "The Memorial of Louis Napoleon." Jay explained in a cover letter why both he and his client were so anxious for New York to cease backing the Lemmon case; they feared it would ultimately land in the U.S. Supreme Court. The Dred Scott majority might then seize on Lemmon as a chance to reintroduce...

Intrinsic Motivation in Public Service: Theory and Evidence from State Supreme Courts

AbstractThis paper provides a theoretical and empirical analysis of the intrinsic preferences of state appellate court judges. We construct a panel data set using published decisions from all state supreme courts from 1947 to 1994. We estimate the effects of changes in judges’ employment conditions on a number of measures of judicial performance. The results are consistent with the hypothesis that judges are intrinsically motivated to provide high-quality decisions and that at the margin they prefer quality over quantity. When judges face less time pressure—whether from the introduction of an intermediate appellate court, the weakening of electoral demands, or an increased salary—they write more well-researched opinions that are cited more often by other judges. These effects are strongest when judges have more discretion to select their portfolios of cases.

Gender Diversity in the Intermediate Appellate Courts of Canada

A large sample of cases from the courts of appeal in five large Canadian provinces are examined to assess the impact of gender diversification on appellate courts. The findings are that there are significant gender differences on the courts of appeal that parallel those on the Supreme Court of Canada. Women are significantly more likely than men are to support the government in criminal cases and to support the individual in civil liberties cases. Moreover, strong panel effects are discovered. As the number of female judges increases, the more male judges tend to adopt the typical female approach to judicial outcomes; no evidence is found that supports critical mass theory.

From Bench to Bench: Is Prior Judicial Experience Favored by Certain Judicial Selection Methods?

Prior judicial experience is an increasingly common attribute among state supreme court justices, and the justices serving during and since 1959 and 2010 have had diverse judicial experiences, including service on different types of courts and for various amounts of time. After weighing the merits and drawbacks of prior judicial experience, I find that no judicial selection methods favor experienced justices over others despite claims by judicial reformers that merit selection will create more qualified courts. Instead, prior judicial experience is a desirable trait across selection methods, and prospective supreme court justices should not pass on opportunities for judicial service on either major or minor trials courts or intermediate appellate courts.

The effect of judicial independence on entrepreneurship in the US states

The relationship between institutional quality, entrepreneurship, and economic growth has been well documented within the literature. However, much less work has been done regarding judicial independence and how this affects, specifically, entrepreneurial activity. Therefore, this paper attempts to fill that gap by exploiting the differences in judicial independence that exist between the US states and empirically evaluating how this affects entrepreneurship. Overall, the results suggest that the method of selecting and retaining justices of both courts of last resort and intermediate appellate courts has a significant and direct effect on entrepreneurial activity, though the latter result is somewhat less robust. The presence of judicial nominating and retention commissions also has a significant and direct effect. Further, although somewhat weaker, the method of selecting the chief justice of a state court of last resort would also appear to have an impact on entrepreneurship. These results are robust to a number of specifications.

Understanding Judicial Power

AbstractHigh courts are widely believed to influence the criminal justice system, yet judicial impact varies widely across political and institutional contexts. Here, we seek to identify the factors that constrain judicial influence on state incarceration rates. We find that the preferences of justices on state courts of last resort and the US Supreme Court influence incarceration; however, high-court impact is conditional on two factors. Judicial influence is stronger in states with divided partisan governments and occurs more quickly in states that lack intermediate appellate courts. Our findings suggest that legislative gridlock and institutional thickness significantly constrain judicial impact.

Due Process Tolling of the Post-Conviction Statute of Limitations in Tennessee After Whitehead v. State

This article concerns criminal procedure: post-conviction procedure in Tennessee. I focus on the Tennessee Supreme Court’s adoption of a new standard in Whitehead v. State for determining when due process requires that courts toll the Post-Conviction Procedure Act’s one-year statute of limitations. A survey of post-Whitehead cases from the Tennessee Court of Criminal Appeals reveals that the intermediate appellate court has not applied the test consistently. Different panels disagree on whether the new Whitehead-Holland test applies to all post-conviction due process tolling claims, or whether it applies only to those claims which are premised on alleged attorney errors. I argue that the Tennessee Supreme Court explicitly addressed the issue in Bush v. State in January 2014, where the Court stated that the new test applies to all such claims, not just claims based on attorney negligence or misconduct. However, my survey reveals that more often than not, even after Bush, the Court of Criminal Appeals continues to incorrectly construe the scope of Whitehead narrowly.

The Effect of Judicial Independence on Entrepreneurship in the US States

The relationship between institutional quality, entrepreneurship, and economic growth has been well documented within the literature. However, much less work has been done regarding judicial independence and how this affects, specifically, entrepreneurial activity. Therefore, this paper attempts to fill that gap by exploiting the differences in judicial independence that exist between the US states and empirically evaluate how this affects entrepreneurship. Overall, the results suggest that the method of selecting and retaining justices of both courts of last resort and intermediate appellate courts has a significant and direct effect on entrepreneurial activity, though the latter result is somewhat less robust. The presence of judicial nominating and retention commissions also has a significant and direct effect. Further, although somewhat weaker, the method of selecting the chief justice of a state court of last resort would also appear to have an impact on entrepreneurship. These results are robust to a number of specifications.

Litigating Civil Cases in State Intermediate Appellate Courts: Analyzing Decisions to Appeal Civil Trial Verdicts or Judgments and the Impact of Appellate Litigation on Trial Court Outcomes

In the civil justice system, litigants can file appeals as a means of challenging or modifying trial court verdicts or judgments. In most states, intermediate appellate courts represent the first, and in many cases, final arbiter of review for civil cases decided by bench or jury trial. While prior research on state appellate courts has focused primarily on civil appeals in state courts of last resort, there have been few attempts to examine the appeals process in state intermediate appellate courts. The current research attempts to address this gap by examining a national sample of tort and contract trials concluded in 2005 that were subsequently appealed. Specifically, this paper explores the factors that are related to (1) the rates in which civil trials are appealed to intermediate appellate courts, (2) the likelihood that a civil appeal will be decided on the merits, and (3) the probability of trial court outcomes being reversed at the intermediate appellate court level. The paper provides a roadmap for better understanding the case and litigant level characteristics that drive key decisions in intermediate appellate courts.