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The Right to Appeal

Cassandra Burke Robertson

Case Western Reserve University School of Law

October 24, 2012

North Carolina Law Review, Vol. 91, No. 4 (Forthcoming)
Case Legal Studies Research Paper No. 2012-32

It is time for the Supreme Court to explicitly recognize a constitutional right to appeal. Over the last century, both the federal and state judicial systems have increasingly relied on appellate remedies to protect essential rights. In spite of the modern importance of such remedies, however, the Supreme Court has repeatedly declined to recognize a due-process right to appeal in either civil or criminal cases. Instead, it has repeated nineteenth-century dicta denying the right of appeal, and it has declined petitions for certiorari in both civil and criminal cases seeking to persuade the Court to reconsider that position.

In this article, I argue that a right to appeal protects both private litigants and the justice system as a whole. First, doctrinal consistency necessitates the explicit recognition of a constitutional right to appeal — a right that the Supreme Court’s criminal and punitive-damages doctrines have already implicitly recognized. Second, the modern procedural system has developed in a way that relies on appellate remedies as part of fundamental due process. Traditional procedural safeguards — such as the jury trial and the executive clemency process — may once have sufficiently protected due process rights. In the modern era, however, these procedures have diminished at the same time that reliance on appeals has grown; as a result, if appellate remedies are removed from the procedural framework, the system as a whole cannot provide adequate due-process protection. Finally, recognizing constitutional protection for appellate rights would also express a normative view, promoting the values of institutional legitimacy, respect for individual dignity, predictability, and accuracy. Appellate procedure has earned a place in our contemporary understanding of due process; it is time to recognize its role as a fundamental element of fair judicial practice.

Number of Pages in PDF File: 65

Keywords: right to appeal, due process, Supreme Court, appellate procedure, appellate remedies, procedural safeguards, institutional legitimacy, individual dignity, constitutional law

JEL Classification: K39, K41

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Date posted: October 24, 2012 ; Last revised: November 18, 2012

Suggested Citation

Robertson, Cassandra Burke, The Right to Appeal (October 24, 2012). North Carolina Law Review, Vol. 91, No. 4 (Forthcoming); Case Legal Studies Research Paper No. 2012-32. Available at SSRN: https://ssrn.com/abstract=2166333

Contact Information

Cassandra Burke Robertson (Contact Author)
Case Western Reserve University School of Law ( email )
11075 East Boulevard
Cleveland, OH 44106-7148
United States
216-368-3302 (Phone)

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