49 Pages Posted: 9 Sep 2005
What happens when the parties to an appeal simply miss the point? This article explores the extent to which an appellate court should involve itself in the process by adding to or refining the arguments the parties have made to support the issues they have properly raised. It examines whether the role of an appellate court is simply to decide among the arguments explicitly set before it, or to reflect on the issue the parties have brought to the court and to reach the best resolution of that issue in light of their own contribution to the analysis. Furthermore, the article looks at the extent to which the court must or should involve the parties - the extent to which they must afford the parties an opportunity to engage with the new argument or reasoning before issuing an opinion - in the event that the court does come up with its own alternative arguments or reasoning on a particular issue. It ultimately concludes that, above all else, these questions require further open and deliberate examination by the appellate courts that deal with them on a regular basis. It appears that judges may currently engage in this kind of involved judging without making it explicit, and/or without explaining why they are justified in so involving themselves. This article suggests that judges serve in some respects as trustees or custodians of the law, and therefore have an active role to play in directing individual cases to the best and clearest conclusions. Until any further self-examination by appellate courts should occur, the article proposes that judges, as trustees of the law, should at least be strongly encouraged to be more involved, by using their discretion, to improve the state of the common law by implementing what they see as the most correct reasoning.
JEL Classification: K1
Suggested Citation: Suggested Citation
Cravens, Sarah, Involved Appellate Judging. Marquette Law Review, Vol. 88, p. 251, 2004; U of Akron Legal Studies Research Paper No. 05-16. Available at SSRN: https://ssrn.com/abstract=796069