IDEAS home Printed from https://ideas.repec.org/a/ucp/jlstud/v39y2010i1p63-108.html
   My bibliography  Save this article

On the Design of the Appeals Process: The Optimal Use of Discretionary Review versus Direct Appeal

Author

Listed:
  • Steven Shavell

Abstract

The socially desirable design of the appeals process is analyzed assuming that it may involve either an initial discretionary review proceeding-under which the appeals court would decide whether to hear an appeal-or else a direct appeal. Using a stylized model, I explain that the appeals process should not be employed when the appellant's initial likelihood of success falls below a threshold, that discretionary review should be used when the likelihood of success lies in a midrange, and that direct appeal should be sought when this likelihood is higher. Further, I emphasize that appellants should often be able to choose between discretionary review and direct appeal, notably because appellants may elect discretionary review to save themselves (and thus the judicial system) expense. This suggests the desirability of a major reform of our appeals process: appellants should be granted the right of discretionary review along with the right that they now possess of direct appeal at the first level of appeals. (c) 2010 by The University of Chicago. All rights reserved.

Suggested Citation

  • Steven Shavell, 2010. "On the Design of the Appeals Process: The Optimal Use of Discretionary Review versus Direct Appeal," The Journal of Legal Studies, University of Chicago Press, vol. 39(1), pages 63-108, January.
  • Handle: RePEc:ucp:jlstud:v:39:y:2010:i:1:p:63-108
    DOI: 10.1086/605094
    as

    Download full text from publisher

    File URL: http://dx.doi.org/10.1086/605094
    File Function: link to full text
    Download Restriction: Access to full text is restricted to subscribers.

    File URL: https://libkey.io/10.1086/605094?utm_source=ideas
    LibKey link: if access is restricted and if your library uses this service, LibKey will redirect you to where you can use your library subscription to access this item
    ---><---

    As the access to this document is restricted, you may want to search for a different version of it.

    References listed on IDEAS

    as
    1. Shavell, Steven, 1995. "The Appeals Process as a Means of Error Correction," The Journal of Legal Studies, University of Chicago Press, vol. 24(2), pages 379-426, June.
    2. Theodore Eisenberg & Michael Heise, 2009. "Plaintiphobia in State Courts? An Empirical Study of State Court Trials on Appeal," The Journal of Legal Studies, University of Chicago Press, vol. 38(1), pages 121-155, January.
    3. Andrew F. Daughety & Jennifer F. Reinganum, 2000. "Appealing Judgments," RAND Journal of Economics, The RAND Corporation, vol. 31(3), pages 502-526, Autumn.
    4. Charles M. Cameron & Lewis A. Kornhauser, 2005. "Decision Rules in a Judicial Hierarchy," Journal of Institutional and Theoretical Economics (JITE), Mohr Siebeck, Tübingen, vol. 161(2), pages 264-292, June.
    Full references (including those not matched with items on IDEAS)

    Citations

    Citations are extracted by the CitEc Project, subscribe to its RSS feed for this item.
    as


    Cited by:

    1. Florian Smuda & Patrice Bougette & Kai Hüschelrath, 2015. "Determinants of the Duration of European Appellate Court Proceedings in Cartel Cases," Journal of Common Market Studies, Wiley Blackwell, vol. 53(6), pages 1352-1369, November.
    2. Sofia Amaral-Garcia, 2015. "Non-economic Damages in Medical Malpractice Appeals: Does the Jurisdiction Make a Difference?," Discussion Papers of DIW Berlin 1506, DIW Berlin, German Institute for Economic Research.
    3. repec:pri:indrel:dsp012v23vt39h is not listed on IDEAS
    4. Theodore Eisenberg & Henry S. Farber, 2013. "Why Do Plaintiffs Lose Appeals? Biased Trial Courts, Litigious Losers, or Low Trial Win Rates?," American Law and Economics Review, American Law and Economics Association, vol. 15(1), pages 73-109.
    5. Kai Hüschelrath & Florian Smuda, 2016. "The Appeals Process in the European Commission's Cartel Cases: An Empirical Assessment," Journal of Empirical Legal Studies, John Wiley & Sons, vol. 13(2), pages 330-357, June.
    6. Michael Hellwig & Kai Hüschelrath & Ulrich Laitenberger, 2018. "Settlements and Appeals in the European Commission’s Cartel Cases: An Empirical Assessment," Review of Industrial Organization, Springer;The Industrial Organization Society, vol. 52(1), pages 55-84, February.
    7. Svetlana Avdasheva & Svetlana Golovanova & Elena Sidorova, 2022. "Does judicial effort matter for quality? Evidence from antitrust proceedings in Russian commercial courts," European Journal of Law and Economics, Springer, vol. 53(3), pages 425-450, June.
    8. Hüschelrath, Kai & Smuda, Florian, 2014. "The appeals process: An empirical assessment," ZEW Discussion Papers 14-063, ZEW - Leibniz Centre for European Economic Research.
    9. Berlemann, Michael & Christmann, Robin, 2017. "The Role of Precedents on Court Delay - Evidence from a civil law country," MPRA Paper 80057, University Library of Munich, Germany.
    10. Wohlschlegel, Ansgar, 2014. "The Appeals Process and Incentives to Settle," MPRA Paper 59424, University Library of Munich, Germany.
    11. Bertrand Chopard & Edwige Marion & Ludivine Roussey, 2014. "Does the Appeals Process Lower the Occurrence of Legal Errors?," EconomiX Working Papers 2014-43, University of Paris Nanterre, EconomiX.

    Most related items

    These are the items that most often cite the same works as this one and are cited by the same works as this one.
    1. Gilat Levy, 2005. "Careerist Judges," RAND Journal of Economics, The RAND Corporation, vol. 36(2), pages 275-297, Summer.
    2. Pierre Bentata & Romain Espinosa & Yolande Hiriart, 2019. "Correction Activities by France’s Supreme Courts and Control over their Dockets," Revue d'économie politique, Dalloz, vol. 129(2), pages 169-204.
    3. Bertrand Chopard & Edwige Marion & Ludivine Roussey, 2014. "Does the Appeals Process Lower the Occurrence of Legal Errors?," EconomiX Working Papers 2014-43, University of Paris Nanterre, EconomiX.
    4. Hüschelrath, Kai & Smuda, Florian, 2014. "The appeals process: An empirical assessment," ZEW Discussion Papers 14-063, ZEW - Leibniz Centre for European Economic Research.
    5. Adam B. Badawi & Scott Baker, 2015. "Appellate Lawmaking in a Judicial Hierarchy," Journal of Law and Economics, University of Chicago Press, vol. 58(1), pages 139-172.
    6. Luca Anderlini & Leonardo Felli & Alessandro Riboni, 2014. "Why Stare Decisis?," Review of Economic Dynamics, Elsevier for the Society for Economic Dynamics, vol. 17(4), pages 726-738, October.
    7. Maria Antonelli & Veronica Grembi, 2013. "A microeconomic model of the demand of civil justice: is one institutional context better than another?," European Journal of Law and Economics, Springer, vol. 36(2), pages 295-318, October.
    8. Deffains, Bruno & Gabuthy, Yannick & Lambert, Eve-Angéline, 2010. "Labour disputes, investment decisions and the judiciary," Labour Economics, Elsevier, vol. 17(2), pages 424-433, April.
    9. Pierre Bentata & Yolande Hiriart, 2015. "Biased Judges: Evidence from French Environmental Cases," Working Papers 2015-17, CRESE.
    10. Anderlini, Luca & Felli, Leonardo & Riboni, Alessandro, 2020. "Legal efficiency and consistency," European Economic Review, Elsevier, vol. 121(C).
    11. Steven Shavell, 2004. "The Appeals Process and Adjudicator Incentives," NBER Working Papers 10754, National Bureau of Economic Research, Inc.
    12. Michael Hellwig & Kai Hüschelrath & Ulrich Laitenberger, 2018. "Settlements and Appeals in the European Commission’s Cartel Cases: An Empirical Assessment," Review of Industrial Organization, Springer;The Industrial Organization Society, vol. 52(1), pages 55-84, February.
    13. Florian Smuda & Patrice Bougette & Kai Hüschelrath, 2015. "Determinants of the Duration of European Appellate Court Proceedings in Cartel Cases," Journal of Common Market Studies, Wiley Blackwell, vol. 53(6), pages 1352-1369, November.
    14. Bharat Bhole & Bríd Gleeson Hanna, 2009. "An analytical framework for interpreting appellate court data," Economics Bulletin, AccessEcon, vol. 29(2), pages 1163-1174.
    15. Wohlschlegel, Ansgar, 2014. "The Appeals Process and Incentives to Settle," MPRA Paper 59424, University Library of Munich, Germany.
    16. Roy Gava, 2022. "Challenging the regulators: Enforcement and appeals in financial regulation," Regulation & Governance, John Wiley & Sons, vol. 16(4), pages 1265-1282, October.
    17. Aspasia Tsaoussi & Eleni Zervogianni, 2010. "Judges as satisficers: a law and economics perspective on judicial liability," European Journal of Law and Economics, Springer, vol. 29(3), pages 333-357, June.
    18. Kamphorst, Jurjen J.A. & van Velthoven, Ben C.J., 2009. "The introduction of an appeals court in Dutch tax litigation," International Review of Law and Economics, Elsevier, vol. 29(1), pages 13-24, March.
    19. Jia, Hao & Skaperdas, Stergios & Vaidya, Samarth, 2013. "Contest functions: Theoretical foundations and issues in estimation," International Journal of Industrial Organization, Elsevier, vol. 31(3), pages 211-222.
    20. Kirstein, Roland & Schmidtchen, Dieter, 1997. "Judicial detection skill and contractual compliance," International Review of Law and Economics, Elsevier, vol. 17(4), pages 509-520, December.

    More about this item

    Statistics

    Access and download statistics

    Corrections

    All material on this site has been provided by the respective publishers and authors. You can help correct errors and omissions. When requesting a correction, please mention this item's handle: RePEc:ucp:jlstud:v:39:y:2010:i:1:p:63-108. See general information about how to correct material in RePEc.

    If you have authored this item and are not yet registered with RePEc, we encourage you to do it here. This allows to link your profile to this item. It also allows you to accept potential citations to this item that we are uncertain about.

    If CitEc recognized a bibliographic reference but did not link an item in RePEc to it, you can help with this form .

    If you know of missing items citing this one, you can help us creating those links by adding the relevant references in the same way as above, for each refering item. If you are a registered author of this item, you may also want to check the "citations" tab in your RePEc Author Service profile, as there may be some citations waiting for confirmation.

    For technical questions regarding this item, or to correct its authors, title, abstract, bibliographic or download information, contact: Journals Division (email available below). General contact details of provider: https://www.journals.uchicago.edu/JLS .

    Please note that corrections may take a couple of weeks to filter through the various RePEc services.

    IDEAS is a RePEc service. RePEc uses bibliographic data supplied by the respective publishers.