7322120278_6e6c447110_zThe composition of the docket of any appellate court of discretionary jurisdiction is a matter of interest to both academic researchers and practicing appellate specialists.

A number of different studies in the academic literature argue that changes in appellate courts’ dockets reflect changes in the nature of American law.[1]  For example, property matters and debt obligations form a significantly smaller part of the docket at all levels today that they once did.  Conversely, tort, domestic relations and regulatory issues – a minor-to-nonexistent part of court dockets in the 19th century – form an increasingly large source of business for courts today.[2]  This is partly a result of the growth of the state court system; in 1870, when one of the earliest large-scale studies of state Supreme Court dockets begins, very few states around the country had an intermediate appellate court.  Accordingly, state Supreme Courts simply heard whatever cases litigants chose to bring before them.[3]  The principal reason why Abraham Lincoln to this day holds the record for having served as counsel of record in more cases before the Illinois Supreme Court than any other attorney is that throughout his legal career, the Illinois Supreme Court was the first (and generally only) stop.[4]  Lincoln’s career as an appellate lawyer reflects this evolution.  A trip through the Lincoln Legal Papers or John Long’s The Law of Illinois reveals a host of property, domestic relations and debt cases which would be highly unlikely to reach the Illinois Supreme Court today.[5]

For the appellate bar, studying the nature of the cases which appellate courts accept for review helps specialists perform one of their most important tasks: predicting which cases the appellate courts will accept.  Like many of the topics we will consider on this blog, there is a good bit of anecdotal learning in the appellate bar about these matters.  For example, most argue that the courts seldom accept interlocutory appeals because of the paucity of the record and the possibility that the matter will settle before reaching them post-judgment.  It is said that obtaining review of an unpublished lower court decision is difficult-to-impossible.  Finally, many argue that the courts prefer to address issues de novo , rather than reviewing questions for abuse of discretion.  In our next post, we begin considering how well any of these bits of conventional wisdom hold up in the recent history of the Illinois Supreme Court.

Image courtesy of Flickr by Loozrboy (no changes).

[1]           E.g., Herbert M. Kritzer, Paul Brace, Melinda Gann Hall & Brent T. Boyea, “The Business of State Supreme Courts, Revisited,” 4 Journal of Empirical Legal Studies, No. 2 (Jul. 2007), 427-28; Robert A. Kagan, Bliss Cartwright, Lawrence M. Friedman, Stanton Wheeler, “The Business of State Supreme Courts, 1870-1970,” 30 Stanford Law Review 121-156 (1977).

[2]           Kritzer, et al., “The Business of State Supreme Courts, Revisited.”

[3]           Kagan, Cartwright, Friedman and Wheeler, “The Business of State Supreme Courts, 1870-1970,” p. 128.

[4]           In Illinois, an intermediate appellate court was first authorized in the Constitution of 1870.  The first Appellate Court did not begin operations until 1877.

[5]           Cook v. Hall, 6 Ill. 575 (1844); Frisby v. Ballance, 7 Ill. 141 (1845); Wren v. Moss, 7 Ill. 72 (1845); Hall v. Perkins, 5 Ill. 549 (1843); see John Long, The Law of Illinois, vol. 1, The Illinois Company (1993), pp. 60, 100, 118, 124; John Long, The Law of Illinois, vol. 2, The Illinois Company (1996); http://www.lawpracticeofabrahamlincoln.org/Search.aspx.  Still, there are exceptions, cases which a modern appellate specialist would feel comfortable addressing today, such as a party’s time to rescind a contract based on the seller’s fraud, an agent’s liability on a contract where the agent failed to disclose the principal, and whether admissions in an answer are binding on another party.  Lockridge v. Foster, 5 Ill. 570 (1843); Chase v. Debolt, 7 Ill. 371 (1845); Martin v. Dryden, 6 Ill. 187 (1844); see Long, The Law of Illinois, vol. 1, pp. 62, 69, 141.