AuthorKenneth L. Karst

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An appeal is the invocation of the JURISDICTION of a higher court to reverse or modify a lower court's decision. Appeal

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from the decision of a federal district court, for example, is normally taken to a federal court of appeals. In earlier federal practice, an appeal was taken by way of a WRIT OF ERROR; today, the term "appeal" has replaced references to the former writ. In the Supreme Court, "appeal" is a term of art, referring to the Court's obligatory APPELLATE JURISDICTION. In this sense, filing an appeal is distinguished from petitioning for a WRIT OF CERTIORARI, which is the method of invoking the Court's discretionary jurisdiction.

In a case coming to the Supreme Court from a state court, appeal is the appropriate remedy when the highest state court has rejected one of two types of claims based on federal law: either the state court has upheld a state law, rejecting the claim that the law violates the federal Constitution or a federal statute or treaty, or it has held invalid a federal statute or treaty. In those two kinds of cases, the Supreme Court is, in theory, obliged to review state court decisions; in all other cases, only the discretionary remedy of certiorari is available. A similarly obligatory review, by way of appeal, is appropriate when a federal court of appeals holds a state statute invalid. However, the overwhelming majority of court of appeals decisions reviewed by the Supreme Court lie within the Court's discretionary review, on writ of certiorari.

Whether a case is or is not an appropriate case for an appeal lies to some extent within the control of counsel, who may be able to cast the case as a challenge to the constitutionality of a state law as applied to particular facts. Yet some cases lie outside counsel's power to characterize; thus, a claim that a valid statute is being applied in a discriminatory manner, in violation of the equal protection clause, is reviewable only on certiorari.

With each passing year the practical distinction between appeal and certiorari has lessened. The Supreme...

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