Shining a Light in a Dim Corner: Standing to Appeal and the Right to Defend a Judgment in the Federal Courts

114 Pages Posted: 26 Jan 2011

See all articles by Joan E. Steinman

Joan E. Steinman

Chicago-Kent College of Law - Illinois Institute of Technology

Date Written: 2004


Volumes have been written about standing to sue, very little about standing to appeal. There is no dearth of interesting issues concerning standing to appeal and its converse, the right to defend a judicial order or judgment, however. In this Article, I illuminate many aspects of the law governing these matters in the federal courts, and analyze the weaknesses in the law.

Part I puts the matters under investigation into context. It identifies conceptual similarities and differences between standing to sue and standing to appeal, and between the "right" to defend in the trial court and the right to defend a judicial order or judgment that has been appealed. It considers the purposes of the doctrines governing these matters, and addresses how Rule 19 parties and intervenors fit into our system. Part I brings into focus uncertainties in the source of the constraints on standing to appeal and to defend appeals: which constraints are constitutionally grounded, and which are prudential or practice-based? It also distinguishes between, compares, and explores the relationships among standing to appeal and the right to defend against an appeal, on the one hand, and related doctrines such as capacity to sue and be sued, mootness, appealability and reviewability, other procedural prerequisites to appeal, and acquiescence in a judgment, on the other hand.

Part II delves into the nature and degree of injury that warrants recognition of standing to appeal from an order or judgment in a civil suit, the requisite relation between that injury and the order or judgment sought to be appealed, and the relevance of the appellate court's ability to redress the claimed injury. Among the primary focuses of this section are the bases for appeal available to a person who has substantially prevailed in the trial court. The Article finds little appellate parallel to the vagaries of injury characterization that have made standing to sue doctrine vulnerable to charges of manipulability, and concludes that concerns about manipulation of the system to obtain an early appeal can be handled in determinations of appealability. Part II shows, however, that courts sometimes have been confused about the standing to appeal of litigants who have prevailed in some respects but failed in others, and that courts have had difficulty in determining the sufficiency-for-appeal of grievances that substantially prevailing litigants have claimed. It argues for abandonment of the collateral estoppel exception to the general rule that prevailing parties may not appeal, and for the re-thinking of other exceptions to that rule.

Part II also considers the doctrines that determine who may be an appellee. The Article does not examine standing to appeal, or a right to defend an order or judgment, that is granted by a particular statute and that is not generally applicable and available. For the most part, the Article also does not consider doctrines that govern in criminal prosecutions and related proceedings such as those initiated by petitions for writs of habeas corpus.

Keywords: Standing to appeal, Right to present a defense, Federal courts, Standing to sue

JEL Classification: K00, K10, K40

Suggested Citation

Steinman, Joan E., Shining a Light in a Dim Corner: Standing to Appeal and the Right to Defend a Judgment in the Federal Courts (2004). Georgia Law Review, Vol. 38, No. 3, p. 813, 2004, Available at SSRN:

Joan E. Steinman (Contact Author)

Chicago-Kent College of Law - Illinois Institute of Technology ( email )

565 W. Adams St.
Chicago, IL 60661-3691
United States

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