JUDICIAL GATEKEEPING FUNCTION - A GENERAL ANALYSIS (FROM AMERICAN COURT SYSTEMS - READINGS IN JUDICIAL PROCESS AND BEHAVIOR, 1978, BY SHELDON GOLDMAN AND AUSTIN SARAT SEE NCJ-55128)

• NCJ Number: 55132
• Author(s): L BAUM
• Date Published: 1978
• Length: 5 pages
• Corporate Author: W H Freeman and Co
• Publication Format: Document
• Language: English
• Country: United States of America
• Note: REPRINTED FROM A PAPER PRESENTED AT THE 1975 ANNUAL MEETING OF THE AMERICAN POLITICAL SCIENCE ASSOCIATION

Annotation

TECHNIQUES USED BY APPELLATE COURTS TO DETERMINE WHAT CASES THEY DECIDE AND HOW FULLY THEY CONSIDER THE CASES THEY DO DECIDE ARE DISCUSSED.

Abstract

INATTENTION TO APPELLATE COURT GATEKEEPING ACTIVITIES HAS BEEN UNFORTUNATE BECAUSE IT HAS HELPED TO PERPETUATE THE VIEW THAT THE COURTS ARE VIRTUALLY POWERLESS TO DETERMINE WHAT DEMANDS THEY WILL ADDRESS. IN REALITY, ALMOST ALL APPELLATE COURTS HOLD IMPORTANT GATEKEEPING POWERS. THE USE OF THESE POWERS SUBSTANTIALLY INCREASES THE DIFFICULTIES FACED BY POTENTIAL LITIGANTS IN OBTAINING DESIRED OUTCOMES FROM THE JUDICIAL SYSTEM. THERE IS A PURPOSIVE ELEMENT IN THE USE OF GATEKEEPING POWERS BY AT LEAST SOME COURTS, WHICH USE GATEKEEPING AS AN INSTRUMENT TO ACHIEVE POLICY GOALS. POLICY-ORIENTED GATEKEEPING CREATES SYSTEMATIC RATHER THAN RANDOM ROADBLOCKS TO LITIGANTS' ACHIEVEMENT OF FAVORABLE RESULTS. MAJOR GATEKEEPING PRACTICES ARE AS FOLLOWS: (1) DISCRETIONARY JURISDICTION (THE POWER TO REFUSE DECISION ON THE MERITS OF A CASE, FOR SOME OR ALL CLASSES OF APPEALS); (2) SUMMARY DISPOSITION (DISMISSAL OR AFFIRMATION, WITHOUT FULL CONSIDERATION, OF LOWER-COURT DECISIONS IN CASES THAT THE APPELLATE COURT LEGALLY MUST HEAR); (3) TRUNCATED PROCEDURE (E.G., STAFF SCREENING OF CASES, ELIMINATION OF ORAL ARGUMENT); (4) MANIPULATION OF COSTS (E.G., IMPOSITION OF PENALITIES FOR APPEALS JUDGED FRIVOLOUS, RELAXATION OF RULES OF FORM FOR APPEALS BY INDIGENT APPELLANTS); AND (5) MANIPULATION OF COURTS' RIGHT TO DECIDE (ESTABLISHMENT OF RULES, BY CONSTITUTIONS, LEGISLATURES, OR THE COURTS THEMSELVES, THAT RESTRICT THE POWER TO DECIDE). THESE PRACTICES, IN ONE FORM OR ANOTHER, ARE USED BY MOST APPELLATE COURTS, USUALLY TO NARROW ACCESS TO JUDICIAL DECISION. GATEKEEPING PRACTICES DIFFER IN CERTAIN RESPECTS AND MAY BE CLASSIFIED BY THE LOCUS OF DECISONMAKING AND BY THE IMPACT OF THE GATEKEEPING DECISION. (LKM)