The Problems of Appellate Courts 681 as to obtain comparative data, is perfectly equity cases in the same way, in order to practicable and may be carried on in such try out the feasibility of this system for a way as to impose no burden upon litigat- dealing with general equity litigation. ing parties. I think a sympathetic can do a In the circuit court in Detroit, the judg- great deal in the way of encouraging very es have been experimenting with a new profitable experimentation, without any system of handling mechanics' lien cases real hardship to parties. and have developed a very effective plan. The third sort of data available is the The old method of litigating all the formal observation of the results of various meth- issues involved in such cases produced ods employed under different conditions very unsatisfactory results. Therefore all over the world. This will require the they tried having the litigants represented co-ordination of many observers and ne- in court by attorneys without witnesses, cessitate the development of a comprehen- who wererequired to state their respective sive system of statistics. Legal statistics positions. The stenographers take down have never received adequate attention be- these statements, on the basis of which the cause they have never had a place in the the precise court determines and fixes traditional system that depended only on points in actual dispute. These are usual- . ly few and simple in lien cases. The case If legal research could be successful in is then referred for the taking of deposi- tions on the real issues so ascertained, and carrying on a systematic study of these the evidence when prepared goes to the various processes, methods, and experi- judge for decision. By this means many ments, in as thorough a way as studies are cases may proceed simultaneously under constantly carried on in medicine, and, in the direction of a single judge. fact, everywhere outside of the law, I The presiding judge of the Detroit cir- think it would go far towards restoring cuit court, being of an experimental frame the prestige of the legal profession, and of mind, has recently suggested to the bar would give society what it is entitled to re- of the city that if they desire it, he will ceive in the way of public service from assign a judge to handle other kinds of the profession.

The Problems of Appellate Courts By WALTEIR F. DODD Profe8sor of Law, Yale Uniersity

[Address delivered at the Twenty-Seventh Annual Meeting of the Association of Anierican Law Schools in New Orleans, Decernber 30, 1929]

islative departments, provision was made C highlyOURTS specialized of review parts have of nowour judicialbecome that the of the (the system. This was not the case in the earli- trial court) should constitute the Supreme 1 er history of state and federal judicial sys- Court of Errors. During a long period tems. During the greater part of the pe- under the federal system, justices of the riod between 1818 and 1848 the Supreme United States went upon Court of Illinois was composed of judges circuit. who did trial work as well. When Con- Some vestiges still remain of the union necticut, in 1806, separated judicial func- of trial and appellate work. In Connec- tions from those of the executive and leg- 1 See Reporter's preface to 1 Conn., at p. xxii.

HeinOnline -- 6 Am. L. Sch. Rev. 681 1926-1930 682 The American Law School Review ticut, judges of the Supreme Court of Er- protect themselves by advising parties to rors are also judges of the superior court, seek their remedies in the trial court, un- but they have long ceased to act in the tri- less the issue sought to be presented is of al of cases. The chief justice and asso- great public importance. ciate justices of the Supreme Court of In the growth of an appellate organiza- New Jersey (who are also members of the tion independent of that for the trial of Court of Errors and Appeals) are by law cases, there has been a tendency to have charged with general trial duties, but ad- different judges for the two sets of courts. ditional judges have been provided to hold This result has come about partly as a circuit court in the absence of a justice of matter of policy and partly because of the the Supreme Court. In Maine until re- .pressure of appellate business. In Illi- cently the justices of the Supreme Court nois, judges of the Appellate Court. (the performed trial duties, but they were intermediate court of review) are desig- largely relieved of these duties by an act nated from the circuit court, and are pre- of 1929 enlarging the jurisdiction of the sumed to combine trial and appellate work, superior courts.- and in the less populous appellate districts Massachusetts presents peirhaps the they do this, although the mass of busi- most interesting illustration of a gradual ness in Chicago renders such a union of severance of trial and appellate jurisdic- functions substantially impossible. In tion. The Supreme Judicial Court of that New York, justices of the Appellate Di- state had and exercised, as late as fifty vision are designated from among the jus- years ago, original jurisdiction in impor- tices of the Supreme Court (the trial tant actions at law, and had exclusive ju- court) but are constitutionally restricted risdiction in equity suits. By transferring in the exercise of trial functions.5 Obvi- such jurisdiction to the superior court or ously, where the same judge performs by authorizing the Supreme Judicial Court both trial and appellate duties, it is, neces- to make such transfer, most of the trial sary to adopt some nile by which he shall work has been gradually shifted to other not, as an appellate judge, pass upon his courts. Jury terms of the Supreme Judi- actions as a trial judge. But embarrass- cial Court have ceased, and it has had the ment may arise where a number of mem- opportunity to concentrate more definite- bers of the court of review have acted up- ly upon problems of appellate review, al- on a case in its earlier stages. In New though the judges of this court still per- Jersey the Supreme Court ordinarily sits form numerous trial functions.2 in three parts (of three judges each) I but Through processes such as have just recently the nine justices, by sitting in been indicated; trial and appellate func- banc upon a case, prevented its review in tions have largely been separated. In the Court of Errors and Appeals, because some cases, as in Connecticut, appellate nine of the sixteen members of that court tribunals have been given no original ju- had disqualified themselves by passing up- risdiction, but in others, certain cases, may on the case in the lower court.' still be originated in the appellate tribu- Normally, if a court of review is com- nals. 'The original jurisdiction of the posed of five, seven, or nine members, no United States Supreme Court is limited to particular hardship is occasioned by the 4 small scope by the Federal Constitution, fact that one member disqualifies himself but in states where there is a wider scope by action below, and the difficulty is not of original jurisdiction, courts of review insuperable, even with a higher court of have ii many cases found it necessary to three, as is the case with the Illinois Ap- pellate Court. Nor would such disquali- 2 Laws of Maine, 1929, pp. 110-116. 3 First Report of the Judicial Council of Mas- 5 New York Constitution, art. VI, sec. 2. sachusetts 1925, pp. 10-14; Third Report, 1927, 6 Rule 150 in 2 N. J. Misc. R. 1256. p. 47. Mass. Statutes, 188:3, ch. 223. For the 7 In re Hudson County, 144 Atl. 169 (1928). development of the equity jurisdiction of the The Court of Errors and Appeals is composed Supreme Judicial' Court before 1883, see Edwin of sixteen members, the chancellor, the chief 11. Woodruff, Chancery in Massachusetts, 5 justice and eight justices of the supreme court, Law Quarterly Review, 370 (1889). and six specially appointed judges who need not 4 Marbury v. Madison, 1 Cranch. 137 (1803). be lawyers.

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fication occasion difficulty where other temporary relief alone'is sought, Supreme judges may be brought in to replace the Court commissioners have often been pro- disqualified member. But the establish- vided to aid in the work of the court. In ment of courts of review with separate or- a number of states the highest courts are ganization and separate personnel has now authorized to sit in sections or divi- been little influenced in this country by sions. the fear that prejudice may exist because In some states efforts have been made a member of the court has already com- by constitutional and statutory provisions mitted himself by presiding at the trial of to meet the increasing burden of appeals a case. The development of specialized by providing for temporary additional courts of review has been primarily oc- judges, or for additional courts to be tem- casioned by the constant and increasing porarily created. In New York the Con- pressure of judicial business. stitution provides that "whenever and as It has not been possible to meet the pres- often as a majority of the judges of the sure of increasing judicial business mere- Court of Appeals shall certify to the gov- ly by separating the trial and appellate ernor that the said court is unable by rea- functions. The Illinois experience illus- son of the accumulation of cases pending trates some of the other devices employed. therein to hear and dispose of same with In 1848, a Supreme Court was constituted reasonable speed, the governor shall des- whose members, three in number, were ignate not more than four justices of the freed from all trial duties. The member- Supreme Court to serve as associate judg- ship of this court was increased to seven, es of the Court of Appeals." In Virginia and intermediate Appellate Courts were constitutional provision is made for a spe- authorized in 1870. The intermediate cial Court of Appeals in such cases. The courts were created in 1877, and have pre- Ohio Constitution provides for the ap- sented the continuing problem of adjust- pointment of a commission of five mem- ing the division of appellate business be- bers, upon the application of the court, t6 tween the Appellate and Supreme Courts. aid it in catching up with its work. An Four Appellate Courts were originally increased use of personnel, without in- provided, of three judges each, but for the creasing the number of judges, is permit- Chicago district this intermediate court ted in the superior court of Pennsylvania, now sits in three divisions and requires which may "designate two of their mem- substantially all the time of nine judges. bers to write opinions during the sessions The continuing pressure of business upon of said court, and, when this is done, these the Supreme Court made it necessary in members shall not be required to sit at the 1927 to provide for two Supreme Court hearings and take part in the examination commissioners to aid in the work of that and decision of any appeal being heard court. Each device-has in its turn tem- during that time." 1 porarily relieved the situation, but soon a The problem of increased complexity of new device must be found. appellate organization is not peculiar to By constitutional change or by statute, the more populous states of New York, an effort has been made to handle increas- Illinois, Pennsylvania and Ohio. Tennes- "ing appellate business in the several states see's Court of Appeals presents the same by (1) increasing the number of judges of problems of jurisdictional relationship as the highest state courts; (2) by authoriz- do the Appellate Courts of Illinois. Geor- ing such courts to sit in sections or divi- gia and Alabama have intermediate ap- sions; (3) by creating intermediate Ap- pellate courts. Louisiana has such a court, 8 pellate Courts. The membership of the and has experimented with the plan of highest state court is in many cases limit- having its Supreme Court sit in divisions. ed by constitutional provision, and where The Supreme Courts of Florida and Mis- constitutional amendment is difficult, or sissippi each sit in two divisions, and in Mississippi the circuit court acts to some 8 For details as to use of these methods be- fore 1920, see Illinois Constitutional Convention extent as an intermediate court of review. Bulletin No. 10 on The Judicial Department, pp. 806, 807. 9 Pennsylvania Statute Law, 1920, § 20,262.

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In Virginia for several years there has purpose of "advising with each other, and been a special Court of Appeals, and the discussing freely and fully all questions Supreme Court of Appeals in 1928 adopt- of a doubtful and complex character which ed a rule under which "the court will sit might arise before each in their respective either in bank or in two divisions." 11 circuits, and thereby to enable each judge Nor does a single state limit itself to to decide such question in the law of the only one of the methods indicated above. united wisdom of the whole Georgia Missouri has three Courts of Appeal; its bench." 11 Moreover there are dangers Supreme Court sits in divisions; the Su- in a judicial system which imposes no re- preme Court and two of the Courts of Ap- straint upon the trial court, as England peal are aided by commissioners. Texas discovered before the passage of the presents perhaps the most striking illus- Criminal Appeal Act 12 of 1907. tration of appellate organization. It has Assuming that some system of appel- a Supreme Court of three members; a late review is necessary, what results are Commission of Appeals of six members; to be accomplished by such review? A a Court of Criminal Appeals of three court of review performs several func- members; a Commission of Criminal tions: (1) It passes upon errors claimed Appeals of two members; and eleven to have been committed in the trial of cas- Courts of Civil Appeals, of three members es, to the prejudice of litigants; (2) in act- each. The state appellate organizations ing upon such cases, it determines the have grown in a purely haphazard man- standards of trial courts, and keeps the ner, without specific plan as to the work procedural and substantive rules they ap- to be done or as to the organization to do ply within certain limits which it regards the work. The same statement applies to as proper; (3) it determines, if it is the the earlier development which largely final court of review, what is the law of .separated from that the jurisdiction. The emphasis placed up- for the trial of cases. on these several purposes may to some ex- It is easy to say, and it is true, that a tent determine both the procedure and the greater emphasis on efficiency in the trial organization of appellate courts. courts should materially lessen the num- The case of Jones v. Smith presents it- ber of appealed cases, and permit a. sim- self to the court of review in the guise of plification of appellate organization, and a specific contest as to private interests. that steps should properly be taken to dis- Often it is merely this. In criminal cases courage unnecessary and dilatory appeals. there is always an interest in rendering But we shall not accomplish any results justice to the accused, and this is the basis by such statements, and we shall not over- for an automatic review under the law in night change the conditions which we now South Africa,' 3 in criminal cases in which face. After all, our people are litigious, the defendant does not appeal. Through and do not desire to admit defeat until the the acquisition of the Virgin Islands, a final appeal has been disposed of. More- similar automatic appeal in death cases has over, the constant increase in regulatory come into the law administered by feder- legislation brings a steady stream of new al courts.1 4 Yet courts of review do more problems that must finally, be solved by than decide the rights of the parties in par- the highest court. ticular cases. Under our theory of law . Courts of review are a necessary part the issue between parties is the essential of the judicial system. From 1776 to 1846 no court of review existed in Georgia, and 11 For an account of the Georgia experience, see Justice Joseph R. Lamar in American Bar each trial judge was the final authority in Association Journal, X, 513 (1924). the cases brought before him. But this 12 Holdsworth, History of English Law, 3d led to such difficulties with respect to the Ed., vol. I, p. 217. In Louisiana there was no uniform application of the law through- appeal in criminal cases from 1812 to 1843. out the state that the trial judges them- L3 F. G. Gardiner, The South African System of Automatic Review in Criminal Cases, 44 Law selves met together at intervals for the Quarterly Review, 78 (1928). 141Braffith v. People of Virgin Islands, 26 10 150 Va. p. iv. Fed. (2d) 646 (1928).

HeinOnline -- 6 Am. L. Sch. Rev. 684 1926-1930 The Problems of Appellate Courts 685 matter. The parties furnish the arena, continuous experience with the actual tri- the issues, and the weapons with which al of cases-an experience which has been the battle is fought, but the result may be largely lost with the creation of separate and often is of great consequence to so- courts and the assignment of separate ciety as well. Cases must not be collusive, judges to appellate work. Because of but they may be made, and frequently their seclusion from trial experience, ap- they are merely the means of settling im- pellate judges often tend to become over- portant questions of public policy and-of technical in their upon the work private law. of trial courts. In The Business of the Supreme Court, In determining where the line is to be Professors Frankfurter and Landis prop- drawn between prejudicial and harmless erly say of the United States Supreme error, consideration must be given to the Court: difference in character between trial and "The Supreme Court is the final au- appellate proceedings. The trial court thority in adjusting the relationships of hears the witnesses, and in many criminal the individual to the separate states, of and common-law civil cases acts with a ju- the individual to the United States, of the ry. The trial court must act promptly and forty-eight states to one another, and of must rule in the excitement of a trial, with- the states to the United States. It medi- out an opportunity to study printed ab- ates between the individual and govern- stracts of all evidence or printed briefs on ment; it marks the boindaries between the legal issues involved in the case. In state and national action." 15 criminal cases the judge must often be- The highest state court in each state al- ware of systematic efforts to trap him in- so mediates between the individual and the to reversible error. Errors of one kind government in many matters of public or another are certain to occur in any long policy, and is the most influential factor and hotly-contested case, no matter how in determining and applying the private competent the judge; to insist upon a rule law within the state. The adequate per- of perfection defeats justice and promotes formance of appellate duties requires the technicality and delay. prompt and satisfactory determination of . A court of review passes upon the trial private controversies, but it requires more. court's action free from the excitement of The appellate function of controlling and the trial, with a printed transcript or ab- making uniform the application of law stract of the record before it, and Mth throughout the territorial limits of the printed briefs presented for its considera- state may perhaps be regarded as merely tion. Counsel for appellant or plaintiff in an incident to the determination of issues error regards it as his duty to go through between private parties, but it involves the record of the trial court with a fine- more than this. Uniformity in the almin- tooth comb, and to maknify errors or al- istration of the law was the primary rea- leged errors. The court of review may son for conferences of the trial judges in have the complete record before it, but it Georgia before the creation of a court of rarely goes behind the printed abstract review in that state. where there is one, and is in fact often- The several functions of courts of re- times not trying the case below, but a view present different problems, although summary of the record of what happened the performance of the several functions below. Under these circumstances it may may be involved in the disposition of the at times become too technical, and fail to same case. Promptness, freed from un- consider the limited bearing of what may due technicality, is of the essence in set- have been an error in the trial 'court. tling the private rights of individuals in- Some courts of review have unfortu- volved in the particular case. For this nately adopted- the Exchequer rule, under purpose it is desirable to have the point of which errors below are presumed to be view of the trial court, and it is of value prejudicial.1 6 Such a rule is improper. for those who sit in review to have some It delays justice between the parties, and

]. Frankfurter and Landis, The Business of 16 For an effective criticism of this rule, see the Supreme Court, p. 308. Wigmore on Evidence, 2d Ed., § 21.

HeinOnline -- 6 Am. L. Sch. Rev. 685 1926-1930 The American Law School Review breeds unnecessary litigation. Interest in dividual cases, but also (2) through opin- a prompt and satisfactory settlement of ions in such cases, determining the prin- litigation should prompt a disregard of ciples of law applicable to future cases. all technicalities. But-a disregard of all For the first, promptness is essential, for errors not actually prejudicial in particu- the second, deliberation is necessary. The lar casies may result at times in a failure decisions of higher courts are generally of the court of review to, perform its func- supported by reasoned opinions, which tion of preserving substantial uniformity are published and cited as establishing in judicial administration. Occasionally principles for the solution of future judi- a trial court will violate express and clear- cial contests. Cases are presenting them- ly established statutory rights of a party; selves in such numbers that in most juris- and a court of review, although feeling dictions it is now impossible for a single that the error was not actually prejudicial court with a small number of members tc in the particular case, may regard, a revers- prepare adequate opinions in support of al as necessary in order to enforce com- its decisions. For this reason we have pliance with the law. Mr. Justice Kalisch courts sitting in divisions, and intermedi- based a dissent in a recent New Jersey ate appellate courts. With these and other case on the ground (in part) that the giv- devices, however, we appear to be prima- ing of admittedly improper charges in rily increasing the bulk and reducing the murder cases "evinces a marked tendency quality of printed opinions.1 9 to perpetrate error, notwithstanding the Naturally, the opinions of intermediate court's pronouncement in the matter, and, appellate courts do not have the same unless checked, will ultimately lead to weight as opinions of the highest court, flagrant miscarriages of justice." 11 and in some cases statutes have expressly Frequency of reversal may result (1) provided that opinions of such courts from too severe a standard in courts of should have no weight in proceedings oth- 2 review, or (2) too lax a conduct in the tri- er than those in which they are filed. 1 al court. An impartial critic has called at- But, nevertheless, the opinions of inter- tention to the fact that in one recent ad- mediate courts are reported and are relied vance sheet of the North Eastern Report- upon in the argument of subsequent cases. er fifteen criminal cases were passed upon Some states have tried the experiment of by the Supreme Court of Illinois, of which having a court designate its less important eleven were reversed and remanded; and opinions as not to be published, but such adds that "the instant group of cases dem- opinions do not escape the all-observing onstrates clearly that the main responsi- eye of the West Publishing Company, and bility cannot be laid at the door of the Su- also find their way into independent series preme Court. Not a single on6 of the elev- of so-called unreported cases. The only en reversals can fairly be called technical. way to avoid the publication of an opinion The most striking feature of these cases is not to write one. is the lawless conduct of prosecutors and The bulk of labor involved in appellate judges, and the ignorance or perversity review revolves in large part around the which their rulings or instructions por- written opinion. The adequacy with tray." 1 In view of such facts the court's which the court determines the law of its duty in preserving an adequate adminis- jurisdiction through written opinions tration of justice will sometimes conflict varies inversely with the number of opin- with its duty to dispose of cases promptly ions to be written. However much a and without technicality. But this possi- court may deliberate, the actual prepara- ble conflict has little bearing. upon the tion of an opinion is almost necessarily problem of appellate organization. the work of one judge. The extent to -A more important problem presents it- which an dpinion so prepared becomes in self, however, when we consider that ap- pellate courts are not only (1) deciding in- '9 The Louisiana Constitution of 1913, re- placed in 1921, provided that "concurring and 17 State v. Martin. 102 N. J. Law, 388, 399- dissenting opinions shall not be published." 400 (1925). 20 Such a provision exists for the Appellate 18 42 Harvard Law Review, 566, 568 (1929). Courts of Illinois.

HeinOnline -- 6 Am. L. Sch. Rev. 686 1926-1930 The Problems of Appellate Courts 687 reality that of the whole court depends up- of opinions without conference among the on the opportunity for conference among judges. Under present conditions a the judges, before, during, and after the lengthy oral argument is likely to defeat preparation of the opinion. If the mem- its purpose and give little aid to the court. bers of the court meet only at stated terms, But oral argument is now almost the only and then go home to write their opinions, method of presenting the essentials of a as is the case in Connecticut, Illinois, and case to all members of an appellate court, some other states, individual conference is and most oral arguments are not effective necessarily restricted, and correspondence for this purpose. Moreover, the judges among the judges is not an effective means who listen will usually not have read the of promoting unity of thought. Where briefs, and will not be well equipped to each member of the court is burdened with follow an oral argument when adequately the necessity of constant labor in order to made. For this reason the practice has prepare opinions in cases assigned to him, developed in some states of submitting there is little time left to consider opinions most cases without oral argument. written by his fellows, and their opinions Under the present pressure of appellate are likely to be concurred in unless strong- work, it would be substantially impossible ly opposed. We may thus get opinions ex- for each member of the court to read the pressing or implying views not concurred records and briefs in all cases presented to in by all members of the court, and some- the court. What appears as the opinion times we have two opposing opinions ap- of the court thus of necessity represents proved by the same court at the same time. in most cases only the opinion of one Such a situation unsettles the law of the member. It is true that the theory of jurisdiction. many states is that no opinion shall be What may be termed "one-man opin- written until the court as a whole has ar- ions" have been encouraged by changes in rived at a decision, but the facts are other- methods of presenting cases to courts of wise. Some fifteen years ago the failure review. In earlier days an oral argument of the whole court to consider the cases before the court, without limitation of presented to it attracted the active atten- time, was a matter of course in the pres- tion of the Bar Associations of Alabama entation of a case. McCulloch v. Mary- and Louisiana, and the Louisiana Consti- land was argued in the United States Su- tution of 1921 requires that "at least two preme .Court for nine days. That court justices shall read each record, and the in 1849 with some apparent reluctance conclusions of the court shall be reached in provided that "no counsel will be permit- consultation before the case is assigned for ted to speak * * * more than two writing the opinion." 22 Earlier than this hours, without the special leave of court, the Supreme Court of California stated granted before the argument begins." It the practice it then followed in the deci- now limits each side to one hour. The sion of cases: Pennsylvania Supreme Court allows thir- "During the service upon this bench of ty minutes to each side, as does the Su- every member of it, and as we are in- preme Court of California.2 1 In earlier formed, ever since the organization of the procedure, printed records and briefs court, the uniform practice has been as were largely unknown. To-day they are follows: The chief justice assigns to the generally required. Formal printed argu- justices in regular order the causes pend- ments have largely replaced the oral ar- ing in bank. Each justice to whom a case gument, and the printed brief forms the is assigned prepares his opinion with or primary basis for. the written opinion. without consultation with other justices The judge to whom the case is assigned as he elects. Having prepared and signed can take the papers in the case home with his opinion, it is passed on to his associates -him. Printed -presentation does not in for consideration. If in due course it is and of itself discourage conference, but signed by three or more of his associates, at least it makes possible. the preparation 22 78 Central Law Journal, 238 (1914); 18 21 Pennsylvania, Rule 72; California, Rule Law Notes, 63 (1914). Louisiana Constitution xix. of 1921, art. VII, § 6.

HeinOnline -- 6 Am. L. Sch. Rev. 687 1926-1930 688 The American Law School Review it then expresses the opinion and judg- is finally approved, the decision is an- ment of a majority of the court, and when nounced, unless one of the judges desires finally handed to the secretary and by him to present a dissenting opinion." 26 In transmitted to and filed with the clerk of Ohio the syllabus, and not the opinion, is the court, it becomes the opinion and judg- the law of the case. On the whole, the ment of the court. major interest in Ohio and elsewhere has "The court never convenes as a court, been that of keeping up with the docket, nor in chambers, in consultation, to ap- and little attention has been paid to the ef- prove opinions so signed previous to their fect of judicial utterances upon"the devel- filing. When they bear a sufficient num- opment of the law. ber of signatures and all the justices have Mere mechanical devices, such as in- examined the same and have had an op- creasing the number of judges, do not portunity to express their assent or dis- solve the problem, and in a single court sent, they are filed, usually at the instance successful conference becomes difficult 27 of the author." 23 with a membership of more than nine. And recently it was seriously contend- But mechanical devices may, and, if prop- ed in the United States Circuit Court of erly used, can aid in the solution' of the Appeals for the Eighth circuit that due problem. Having a court sit in divisions process of law was denied by a decision means more judges in the same court; the of the Supreme Court of Oklahoma, in multiplication of intermediate courts of which there was a record of approximate- review means more judges engaged in ap- ly 3,000 pages, and in which the petitioner pellate work, though sitting in separate averred that four judges concurring with courts. The use of these mechanisms an opinion by another judge had not "read nmst be adapted not merely to the mass of a word of the testimony as set out in the cases to be disposed of, but also to the type case-made, or as contained in the briefs, of work to be done. and knew absolutely nothing about the law No effort will be made in this paper to or the facts which should have determined discuss the relative merits of intermediate the decision of that case, and were there- appellate courts and of a single appellate fore unable to concur in any judgment in court sitting in divisions. The two meth- the case, and their purported concurrence, ods are not mutually exclusive. Missouri as shown by the record, is a fraud on your has a Supreme Court sitting in divisions petitioner." 24 and intermediate appellate courts as well. In view of the increasing mass of cases, Professor Sunderland has said that the the appellate courts are faced with a very two chief defects of intermediate courts practical problem. How are they to de- are "uncertainty of jurisdiction and double termine all cases submitted, and to main- appeals." 28 But the jurisdictional prob- tain a leadership in the development of the lems may readily be exaggerated, even law? Another answer suggests itself, and though we may at once agree that there that is to surrender any attempt at leader- are no purely logical grounds upon which ship, and to have opinions express, not the jurisdiction may be divided. And from judgment of the court as a whole, but only the standpoint of adequate consideration the views of the individual judge. Ohio has openly taken a State Reports, p. ix. The Ohio practice ap- step in this direction, pears to be traceable as far back as 1857. and other states have less openly reached 26 Address of Judge Thomas A. Jones, 24 the same result. In the Ohio Supreme Ohio Law Bulletin and Reporter, N. S. 324, 333, Court the judge assigned to prepare the 338 (1926). 27 The New Jersey opinion of the court Court of Errors and Ap- piepares a syllabus peals has sixteen members. The New York which is submitted to the other judges be- court for the trial of impeachments and correc- fore publication.2 5 "When the syllabus tions of errors, which existed until 1846, was still larger, consisting as it did of the president of the senate (who was lieutenant governor), 22 People v. Ruef, 14 Cal. App. 576, 621, 622 the senators (32 in 1821), the chancellor, and (1910). the justices of the Supreme Court. 24 Owens v. Battenfield, 33 Fed. (2d) 753 28 E. R. Sunderland, The Problem of Appe.. (1929). late Review, 5 Texas Law Review, 126, 138 25 113 Ohio State Reports, p. lxxii; 94 Ohio (1027).

HeinOnline -- 6 Am. L. Sch. Rev. 688 1926-1930 The Problems of Appellate Courts of important issues of law, the court sit- attached to the determinations of the in- ting in divisions presents difficulties, in termediate court or courts. An effort to that there is little more of a logical ground accomplish this result was made by con- for determining when cases shall go from stitutional amendment in Ohio in 1912. a division to the full court for considera- By the Illinois certiorari act of 1909, and tion.29 Moreover, under the divisional by federal legislation culminating in 1925, plan, there is often no single authoritative steps were taken in this direction, although determination of the law,10 and counsel by constitutional provision the Illinois Su- are apt to maneuver their cases into the preme Court has a wide range of compul- division likely to Ibe most favorable. In sory jurisdiction, and by statute a lesser addition, if a case goes from one division similar jurisdiction is exercised by the to a full court, there is likely to be no clear United States Supreme Court. California new judgment of the full court, because has recently taken a step similar to that some of its members have already definite- in the federal system. 3 2 New York has ly committed themselves. A single cou~t gone still farther. Speaking of the pro- sitting in divisions may be the more effec- visions of the New York Constitution of tive agency for the disposition of cases, 1894, Mr. Justice Martin said for the but it is not likely to establish or main- Court of Appeals :3 tain a leadership in legal development "The constitutional convention clearly within the jurisdiction. Moreover, a sin- entertained the opinion that the continued gle court sitting in divisions is, for prac- existence of the Court of Appeals was tical and geographical reasons, out of the justified only by the necessity that some question in the federal system. tribunal should exist with supreme power Intermediate courts now exist, and will to authoritatively declare and settle the continue to exist. 1 Assuming their exist- law uniformly throughout the state. That ence, how can they best be used? The court was continued, not that individual problem of double appeals is a serious one. suitors might secure their rights, but that Such appeals make for added delay and the law should be uniformly settled, to the added expense. But the use of an in- end that the people might understand the termediate court does permit of an organi- principles which regulated their dealings zation by which the more important cases and conduct and thus, if possible, avoid may come to the final court of review for litigation. It was that necessity alone deliberate consideration. A more delib- which induced the adoption of the pro- erate consideration by the highest court visions for a second appeal, and the con- requires that fewer cases come to that tinuance of a single court to finally deter- court, and means that double appeals shall mine such principles." be limited and a greater degree of finality And Judge Cardozo has said that the New York Court of Appeals exists, "not ."9 For an interesting plan for transfer of cas- for the individual litigant, but for the in- es to the full court, see California Constitution, definite body of litigants, whose causes art. VI, § 2. are potentially involved in the specific 30 New York and Louisiana appear not to have been satisfied with the experiment of having the cause at issue. The wrongs of aggrieved highest court sit in divisions. For New York, suitors are only the algebraic symbols See Frank H. Hiscock, The Court of Appeals of from which the court is to work out the New York; Some Features'of its Organization and Work, 14 Cornell Law Quarterly, 131, 133 '-'Rule XXX, § 6, effective September 1, (1929); and Charles Z. Lincoln, Constitutional 1928. Chief Justice William II. Waste, Giving History of New York, vol. II, pp. 585-586. For Finality to the Decisions of the District Courts an interesting debate on the divisional plan, see of Appeal, Proceedings of the First Annual Report of Louisiana Bar Association 1923, pp. Meeting of the State Bar of California, p. 92 14-100. For the operation of the Washington (1928). For recent comments on appellate or- court in two divisions, see Journal of the Ameri- ganization in other states see Second Report of can Judicature Society, vol. 6, p. 177. the Judicial Council of California, pp. 55-64 31 Difficulties of an administrative character (1929). with intermediate courts multiply with the num- 3 Reed v. MeCord, 160 N. Y. 330, 335 (1899). ber of such courts. In Pennsylvania, where The Judicial article of the New York Constitu- there it but one such court, the problems are tion was substantially revised in 1925, but not quite different from those of Ohio with nine, in a manner to alter the application of this lan- and Texas with eleven. guage.

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formula of justice." 34 The New York Under a system of intermediate courts Constitution of 1894 also sought to limit of appeal, there is, therefore, some possi- double appeals, and to reduce the work of bility of specialization by the highest court the Court of Appeals by providing that the upon the more important cases involving jurisdiction of that court, "except where the uniformity and the development of the the judgment is of death, shall be limited law. But how effectively can the selection to the review of questions of law," and be made, and is it possible to protect the that "no unanimous decision of the Appel- highest court so that it may give adequate late Division of the Supreme Court that attention to such issues? Judge Cardozo there is evidence supporting or tending has said: 37 to sustain a findi'ng of fact on a verdict "Of the cases that come before the court not directed by the court, shall be re- in which I sit, a majority I think, could viewed by the Court of Appeals." But in not, with semblance of reason, be decided 1925 the review of facts was extended to in any way but one. The law and its ap- cases "where the Appellate Division, on plication alike are plain. Such cases are reversing or modifying a final judgment predestined, so to speak, to affirmance in an action or a final order in a special without opinion. In another and consid- proceeding, makes new findings of fact erable percentage, the rule of law is cer- and renders a final judgment or a final tain, and the application alone doubtful. order thereon." 35 Even the highest A complicated record must be dissected, courts of review must bear in mind that the narratives of witnesses, more or less issues of law do not present themselves in- incoherent and unintelligible, must be an- dependently of the facts. alyzed, to determine whether a given sit- New York has deliberately made its uation comes within one district or anoth- Court of Appeals the final body for the er upon the chart of rights and wrongs. authoritative declaration of the law, and * * * Often these cases and others has planned its appellate organization so like them provoke difference of opinion as to enable the court to perform this among judges. Jurisprudence remains function. Under this plan, cases must untouched, however, regardless of the usually come to the Court of Appeals outcome. Finally there remains a per- through the Appellate Division, and the centage, not large indeed, and yet not so Court of Appeals ordinarily has the aid of small as to be negligible, where a decision an opinion of the intermediate court. A one way or the other, will count for the result somewhat similar in character is future, will advance or retard, sometimes sought by federal legislation of 1925.36 much, sometimes little, the development of the law. These are the cases where 34 Van Bergh, The Jurisdiction of the Court the creative element in the judicial process- of Appeals of the State of New York, p. 19 finds its opportunity and power." (1928). Obviously there is no automatic means 33 Compare art. VI, § 9, of the Constitution of 1894, with art. VI, § 7, as amended in 1925. of selecting the important cases. And The scope of review has a good deal of bearing groups of cases important in one period upon the amount of work of an appellate court. may become much less so in another. In Louisiana the Supreme Court reviews both the law and the facts. In Connecticut, the Su- Freehold cases in Illinois were sufficiently preme Court of Errors limits itself to "the de- important in 1870 to justify a constitu- termination of principles of law" and will not tional provision that they could be taken to pass upon "pure questions of fact." Styles v. Tyler, 64 Conn. 432. Between these two ex- the highest- state court, but they are not tremes variations occur in the several states; sufficiently important to-day. In many but in all states the courts must in a great num- states workmen's compensation cases were her of cases examine the evidence, even though they limit, or profess to limit, themselves to is- properly sent to the highest state court for sues of law. direct review, when the cases involved 36 From the standpoint of review by the Unit- novel issues of law, but such review may ed States Supreme Court, the highest state courts are in effect intermediate courts of ap- no longer be necessary when the legal is- peal. In the federal system itself direct review sues have largely been settled, and the from the district courts is more widely permit- ted than is direct review from trial courts under 7 The Nature of the Judicial Process, 164, the New York system. 165 (1921).

HeinOnline -- 6 Am. L. Sch. Rev. 690 1926-1930 The Problems of Appellate Courts 691 cases primarily involve disputed issues of restrict its selection to cases that are of fact. distinct importance. Many cases will pre- In the adjustment of work between the sent themselves in which a formal written final court of review and intermediate opinion is unnecessary, except as a tribute courts, perhaps the best device has been to the lawyers who have presented the that of permitting the higher court itself case. The desire of the counsel that rea- to determine the cases in which it will take sons be fully stated in their own particu- jurisdiction. Such a plan is usually united lar cases does not sufficiently justify the with some power in the intermediate court burdening of a court with the preparation to certify cases or issues of law to the of unnecessary opinions, and this is par- higher court. We have been moving to- ticularly true in either important or un- ward a reduction of the higher court's important cases where a satisfactory opin- compulsory jurisdiction and an increase ion has been written in the intermediate of its optional jurisdiction. Illustrations court. The Ohio Supreme Court makes of such a development are found in the a good deal of use of memorandum opin- Illinois certiorari act of 1909, the federal ions, which apparently meet the constitu- acts of 1916 and 1925, and in the Cali- tional requirement that decisions "be re- fornia rules of 1928. Of course we must ported, together with the reasons there- not forget that such a plan devolves upon for." *The plan of optional jurisdiction the higher court the task of making the through certiorari is employed in the su- choice."5 This is a burdensome task, but preme courts of the United States and of its performance requires neither oral ar- Illinois to decline to entertain cases, with- guments nor written opinions, and the bur- out the necessity for a written opinion. den is one that can be borne, if direct com- And in cases that are taken for considera- pulsory jurisdiction is substantially re- tion on the merits, the United States Su- duced. New York presents an illustration preme Court and the Court of Appeals of of such reduction of direct compulsory New York properly make an extensive jurisdiction, but a similar result has not use of memorandum opinions. been obtained in Illinois and in the federal What has just been said should not be system. understood to disparage the importance of With a system of intermediate courts, written opinions. The preparation of a a reduction of the compulsory direct ju- written opinion and deliberate conference risdiction exercised by the highest court thereon promote more careful work upon may accomplish much to restore such a the part of any court. My present re- court to leadership in the legal develop- marks are limited to a final appeal in which ment within its jurisdiction. More time there has already been a determination by will be afforded for conference among the an intermediate court, with the reasons judges; and there is less likelihood that a ordinarily set forth in an opinion by that court will unanimously declare a statute court. invalid, and then on rehearing unanimous- Nor should what is said here be con- ly, through the same judge, declare the strued as minimizing the importance of statute valid."9 We shall be able to re- intermediate appellate courts. For the duce the growing evil of rehearings. 40 final determination of the law there nmst No court of final review, even though it be a single, unified command, and that command has the option of taking cases, can ever must be exercised by the high- est court of review. Such command, ex- 38 There is also the further question as to ercised through an optional jurisdiction, whether the court as a whole makes the choice. increases the importance of an intermedi- Petitions for certiorari may not actually be read ate court. It is true that a refusal to take by all the members of the United States Su- preme Court or of the Supreme Court of illi- jurisdiction does not approve the reason- 4 1 nois, but it is probable that few if any important ing of an intermediate court's opinion, cases are overlooked. 30 Halsell v. Merchants Union Insurance Co., 41 For the situation in a single jurisdi&ion, 105 Miss. 268 (1913). see Soden v. Claney, 269 Ill. 98; *People v. 40 Wayne G. Cook, The Rehearing Evil, 14 Grant, 208 Ill., App. 235; People v. Grant, 283 Iowa Law Review, 36 (1928). Ill. 391, 397.

HeinOnline -- 6 Am. L. Sch. Rev. 691 1926-1930 692 The American Law School Review but merely leaves its decision undisturbed. typewriter and the wider use of the ste- But the opinion in reality obtains greater nographer. The court has some remedy weight by virtue of the fact that it sup- in its hands, and the United States Su- ports a final determination, undisturbed preme Court ordered the reargument of by the higher court. And where, as is several important cases at its last term. often the case in New York, the Court of The Supreme Court of Illinois some years 4 5 Appeals affirms the judgment of the in- ago struck several briefs from the files, termediate court on the basis of 'that but an undue tenderness for counsel re- court's opinion, the intermediate court ac- strains the frequent employment of disci- quires an added dignity. Because of such pline of this character, and where such reliance upon their opinions by the high- action is taken, the penalty is in fact more er court, the Appellate Divisions in New upon the client than upon the lawyer. The York occupy a higher position than do the lawyer as well as the judge owes some du- Appellate Courts of Illinois, whose opin- ty in the development of the law. ions are never approved or adopted in toto In the adaptation of intermediate ap- by the Supreme Court of the state or cited pellate courts, New York and Illinois pre- in its opinions. sent a striking contrast. In Illinois the Although intermediate courts may be Supreme Court produces some 3,000 pages employed, not only to dispose of cases, per annum of written opinions. In New but also to aid in a better consideration of York the written product is not more than legal issues, mechanical devices alone can- one-half as great. Perhaps no great dif- not produce a better legal product. Cases ference presents itself in the standard of must be adequately presented to the court, presentation of cases by counsel., The and must receive adequate consideration. New York court receives a greater pro- Speaking of the increased importance of portion of its cases from the iihtermediate economic and social problems in the con- appellate courts, and makes an extensive stitutional issues before the United States use of memorandum opinions. The Illi- Supreme Court, Professors Frankfurter nois court makes no use of memorandum and Landis have said: opinions, and writes a second opinion even "If the bar is to fulfill its duties in this though it fully concurs in the results most important domain of law, it must reached by the intermediate court. The realize the nature of issues raised by con- New York court is in more continuous stitutional controversies and be capable of session and has a permanent chief justice, assisting courts in their solution." 42 whereas the Illinois judges are together But adequate presentation of cases is only for specified terms of court, and the needed, not only in constitutional issues chief justice changes each year. The New before the United States Supreme Court, York court is the master of its task, where- but also in intermediate courts and in the as the Illinois court is so overwhelmed highest state courts as well. Some oppor- with the detail of specific cases that there tunity to examine briefs and to listen to is little time for adequate consideration of oral arguments convinces me -that the the broader problems presented to it. A court would in a large proportion of the system of intermediate courts in the one cases be better off without either. Some- accomplishes a result quite different from 46 thing toward the improvement of briefs 'that in the other. may be accomplished by rules of court, and results seem to have been thus 4*5 See Dodd and Edmunds, Appellate Juris- achieved in Pennsylvania, 43 but rules in diction and Practice in Illinois, p. 820 (1929). 46 In Illinois, cases are automatically assigned Texas 44 and Illinois similar to that of in order to the several judges, and the same Pennsylvania appear to have accomplished practice is employed in New York. In Louisi- little. Briefs, like opinions, have acquired ana and in the Supreme Court of the United added prolixity with the invention of the States, and in a number of other courts of re- view cases are assigned by the chief justice. 412The Business of the Supreme Court, 315. The automatic assignment is perhaps a natural development of the plan of annual chief justices .43 Chief Justice Robert Von Moschzisker in in Illinois. Unlike the courts of Massachusetts, 34 Yale Law Journal, :187 (1925). Connecticut and some other states, the Illinois 44 5 Texas Law Review, 56 (1926). court has since 1897 held all of its terms at the

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There is little likelihood of a decrease in the clearing of congested dockets. We in appellate work, either in the federal or must face the issue of a more effective ap- in the state courts. Our judicial system pellate organization as a permanent one. is topheavy, and places too much emphasis And in solving the problem of appellate on appeal. Something to correct this may organization, we must bear in mind that be accomplished by reducing technicalities keeping up with its docket, important as and penalizing unnecessary appeals. But it is, is not the only function of a court of whatever is accomplished, we must pro- review. Under our system of law, courts vide machinery to dispose of a growing are vested with the final construction of mass of appellate cases. Little will be ac- constitutions and statutes, and with the complished by temporary devices to aid final determination of rules of common law. They are charged with a leadership state capital. Upon details as to appellate in the law which they cannot surrender, work see Journal of the American Judicature and which they are not now organized to Society, vol. 8, p. 165; vol. 9, pp. 20, 49, 115, 152; vol. 10, p. 57. exercise.

Intermediate Appellate Courts By EDSON R. SUNDERLAND Professor of Laic, Univcrsity of Michigan

[Address delivered at the Twenty-Seventh Annual Meeting of the Association of American Law Schools in New Orleans, December 30, 19291

The great number of appeals which re- A enceright ofof aappeal hierarchy involves of courts, the exist- and sult from modern litigation has made it a hierarchy of courts presupposes a some- necessary in many jurisdictions to increase what highly developed political system. the number of appellate judges, and this Hence in early times the court of first in- has in turn raised the question as to the stance, as the immediate delegate of the most effi-ient manner in which an appel- judicial power of the government, heard late bench can be organized. and disposed of cases with absolute final- Inferior court appeals have usually ity. Such was the situation in Rome in been carried to the superior courts of gen- the simple days of the republic, and it was eral jurisdiction, which have taken care only with the more elaborate organization of such appellate business in addition to of the empire that a system of judicial ap- their work as courts of first instance. peals came into existence (Hunter on Ro- Such appeals involve small values, require man Law (4th Ed.) 1044). The same sit- prompt decision, and cannot carry a heavy uation was repeated in England. In the expense to the parties, and the connonly twelfth century there was no appeal from employed system of a local rehearing be- inferior courts to the king's court, but fore a judge of higher grade seems to there were methods of. removing cases be- meet the situation well enough. fore judgment. The ecclesiastical courts, The chief difficulty arises in appeals however, deriving their organization from from superior courts. Should appellate Roman sources, became a model which jurisdiction be divided, some cases going finally brought into existence a civil sys- to one court and some to another, with a tem of judicial review (2 Pollock and possible second appeal ? The federal ju- Maitland: Hist. of English Law (2d Ed.) diciary is so organized, and many states 664,666). have adopted the same plan. It is a logi-

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