Appellate Courts as First Responders: The Constitutionality and Propriety of Appellate Courts’ Resolving Issues in the First Instance

Posted: 9 Jul 2011

See all articles by Joan E. Steinman

Joan E. Steinman

Chicago-Kent College of Law - Illinois Institute of Technology

Multiple version iconThere are 2 versions of this paper

Date Written: July 7, 2011


Is there any place in our system for appellate courts to rule on issues that no inferior court has ruled upon? In fact, there are a surprising number of occasions on which courts of appeals, including the United States Supreme Court, addresses and decides questions that a trial court judge did not decide. On those occasions, they are not reviewing the decision of another tribunal. The Supreme Court has declared that intermediate federal courts of appeals (“IFACs”) have discretion to decide when they will address such issues.

This reality raises a great many questions. Aside from the threshold question, when should an issue be regarded as “new”?, questions one might ask include: Do Article III or Congressional statutes speak to federal appellate authority to address new issues – and, if so, what do they say? What guidance has the Supreme Court given with respect to appellate courts’ proper role in regard to new issues? What is the proper role of appellate courts in regard to new issues? When, if ever, is appellate courts’ taking the “first stab” appropriate, and why? Do intermediate appellate courts and supreme courts vary in their responses to new questions, depending upon the different ways in which the new issues arise or based upon other parameters? What are those other parameters, and should appellate courts’ responses vary with them? What does appellate courts’ acceptance and decision of new questions say about the roles and capacities of appellate versus trial courts, and about how we design appellate systems? In this Article, I attempt to explore many of these questions and propose some answers.

After Introductory Notes that address the scope of this Article and prior literature, Part I discusses sequencing theory and the light it sheds on the importance of the issues raised here. Part II explores Article III, Congressional legislation, and pronouncements by the Supreme Court concerning the power of the Supreme Court and of intermediate federal appellate courts to take the first stab at issues. It explores the circumstances in which appellate courts should and should not exercise their power to decide issues that were not ruled upon in the district courts. Part IV examines the realities in the federal intermediate appellate courts. It looks at both cases in which IFACS declined to consider new issues and cases in which IFACS did consider new issues. Part V evaluates these realities. Based upon the institutional and functional arguments for appellate courts not to decide issues for the first time on appeal, and the responses to those arguments, the Article makes a proposal stating the showing that a party who raises a new issue on appeal should have to make before the appeals court will hear the issue. The Article then concludes.

Keywords: appeal, appellate jurisdiction, issues

JEL Classification: K00, K10, K40, K41

Suggested Citation

Steinman, Joan E., Appellate Courts as First Responders: The Constitutionality and Propriety of Appellate Courts’ Resolving Issues in the First Instance (July 7, 2011). 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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