Thursday, November 1, 2012
Wednesday, October 31, 2012
Cassandra Burke Robertson has posted The Right to Appeal on SSRN.
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.
Sunday, October 28, 2012
SCOTUS Oral Argument in Clapper v. Amnesty International: Article III Standing to Challenge Federal Wiretapping Procedures
Although Hurricane Sandy may change things, the Supreme Court is still – as of this post anyway – scheduled to hear oral argument tomorrow in Clapper v. Amnesty International. The issue is whether the plaintiffs have Article III standing to challenge the 2008 amendments to the Foreign Intelligence Surveillance Act. Here are a few posts of interest:
- SCOTUSblog, Argument preview: Can global wiretaps be challenged? (Lyle Denniston)
- Lawfare, Why Clapper Matters: The Future of Programmatic Surveillance (Steve Vladeck)
- Slate, Why Amnesty Should Lose at the Supreme Court (Eric Posner)
For links to all the merits and amicus briefs, head to SCOTUSblog’s case file.
PS: To everyone in Sandy’s exceptionally wide path, stay safe.