Friday, November 2, 2012
Professor Cassandra Robertson (pictured left) argues that we might be forgiven for thinking that there is a constitutional right to appeal, the practice is so ubiquitous and well-established in procedural rules. But in her article, The Right to Appeal, forthcoming in the North Carolina Law Review, and available in draft on ssrn, Robertson reminds us that "appellate review is not constitutionally guaranteed; in some jurisdictions, the losing litigant may be forced to go without any review of the trial court’s verdict at all," illustrating her conclusion with a civil and a criminal case, both from West Virginia.
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.
Even if the cases in which there is no access to direct appeal are "few in number," she argues that constitutional due process should protect the "unusual or rare case in which justice is denied."
Robertson's argument skillfully combines doctrinal, practical, and constitutional considerations. The "expressive power of constitutional recognition," she writes, would be especially helpful for marginalized groups and outlier cases (for example, in juvenile cases).
For law profs who teach both constitutional law and procedure courses, this is definitely a must-read.