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

88 Pages Posted: 18 Aug 2011 Last revised: 21 Aug 2012

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: August 17, 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, address and decide 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? Should the scope of discretion available to the Supreme Court to hear new issues differ from the scope of discretion in IFACs to do the same? 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 also makes the point that the scope of appellate jurisdiction before and after final judgment constrains what new issues appellate courts may hear. Part III shifts the focus from power to judicial discretion, and examines the realities in the Supreme Court and in the federal intermediate appellate courts. It categorizes and discusses both cases in which the Supreme Court or IFACs did consider new issues and cases in which the Supreme Court or IFACs declined to consider new issues. Part IV evaluates these realities, exploring 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. I am interested in seeing how explicitly and how satisfactorily case law addresses the circumstances under which appellate courts will decide issues not decided below. Just as in other areas of the law, case law developed over time ideally should tend toward greater clarity and certainty, as it develops theoretically and practically defensible answers to the questions when appellate courts should decide new issues and when appellate courts should utilize mechanisms to have trial judges or adjuncts to the appellate branch make initial determinations that appellate courts can review. The Article offers a proposal to govern the circumstances under which a new issue should be heard on appeal. It considers whether and when the Supreme Court should have more leeway than IFACs. The Article then concludes.

Keywords: procedure, jurisdiction, courts

JEL Classification: K40, K41, K49

Suggested Citation

Steinman, Joan E., Appellate Courts as First Responders: The Constitutionality and Propriety of Appellate Courts’ Resolving Issues in the First Instance (August 17, 2011). Notre Dame Law Review, Vol. 87, No. 4, 2012, 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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