Re: (legal) Re: CDA Dispatch #10: Last Day in Court

At 06:06 PM 5/14/96 -0400, you wrote:

>You can appeal directly on the merits.  And you do so.  The higher court 
>decides all questions of law de novo (ie pays no deference ot tyhe 
>decision of the court below beyond whatever persuasive power it may 
>have), but must accept the factual record as presented ("found") by the 
>court below.  Thus the importance of the trial testimony at this stage.

        Ok, thank you for clarifying that. One question regarding the "de
novo," if a lower court decides to restrict its ruling to a specific aspect
of the case ("indecency") can the higher court broaden the scope of its
ruling, or must its ruling be with specific regards to the scope of the
lower court. (I don't know if the appeal can be on the basis of the scope.)

BTW: This is what a lawyer/professor was able to tell me. As you can see I
was thinking of a garbled version of a jury trial:


I'm not familiar with the case, so I cannot speak to its specifics, 
however here is the general concept of appeals in the U.S. Courts:  At 
the trial of any case there are two categories of issues to be 
resolved--those called "factual" issues and those called "legal" issues.  
Only legal issues are subject to appeal in a higher court.

If there is a jury trial, the "facts" are what the jury decides 
(including, en route to their decision, which witnesses to believe) and 
this is called the verdict.  The verdict per se is not subject to 
appeal.  The "law" is what the judge decides, and can include matters of 
procedure as well as matters of substance.  Typically these are 
decisions about what evidence to admit, what instructions to give to the 
jury, what motions to grant or deny, etc.  All of this is subject to 
appeal.  If the appeal necessitates a new trial, the new jury starts 
over with new testimony, and reaches its own conclusion on the 
facts--but this is not really an "appeal" of the first jury's verdict.

If there is no jury at the first trial, the trial judge wears both hats, 
finding the facts and making conclusions of law--but keeping these 
decisions separate in his or her opinion.  Only the judge's conclusions 
of law in such trials are subject to appeal.
_______________________
Regards,       Men govern nothing with more difficulty than their tongues,
               and can moderate their desires more than their words. -Spinoza
Joseph  Reagle      http://farnsworth.mit.edu/~reagle/home.html
reagle@mit.edu      E0 D5 B2 05 B6 12 DA 65  BE 4D E3 C1 6A 66 25 4E

On Tue, 14 May 1996, Joseph M. Reagle Jr. wrote:


>         Ok, thank you for clarifying that. One question regarding the "de
> novo," if a lower court decides to restrict its ruling to a specific aspect
> of the case ("indecency") can the higher court broaden the scope of its
> ruling, or must its ruling be with specific regards to the scope of the
> lower court. (I don't know if the appeal can be on the basis of the scope.)

If the legal issue was presented for decision below, and forms a part of
the notice of appeal, then it is properly preented to the court of appeal,
regardless of what the court below actually did.  Any other rule would
allow a trial court to prevent issues from being reviewed.  The Supreme
Court has been known, however, to decide issues that went beyond the
strict confines of these limits. Even things that weren't argued by the 
parties....  

If the appellate decision requires more facts in order to apply the 
legal principle decided by the higher court, it has the option of 
remanding the case to the trial court for more fact-finding in light of 
the legal rules explicated by the higher court.

[...]

[I am away from Miami from May 8 to May 28.  I will have no Internet 
connection from May 22 to May 29; intermittent connections before then.]
 
A. Michael Froomkin        | +1 (305) 284-4285; +1 (305) 284-6506 (fax)
Associate Professor of Law | 
U. Miami School of Law     | froomkin@law.miami.edu
P.O. Box 248087            | http://www.law.miami.edu/~froomkin
Coral Gables, FL 33124 USA | It's warm there.

Excerpts from internet.cypherpunks: 15-May-96 Re: (legal) Re: CDA
Dispatch. by Michael Froomkin@law.mia 
> If the legal issue was presented for decision below, and forms a part of
> the notice of appeal, then it is properly preented to the court of appeal,
> regardless of what the court below actually did.  Any other rule would

Speaking of appeals, I've been thinking about what happens with the CDA.
Okay, so we have two court cases going on, the Shea v. Reno case in NYC
and the coalition lawsuits combined in Philly.

What happens if the DoJ loses both the NYC and Philly cases and (as they
said they would) appeals to the Supreme Court. Won't they take the
weaker of the two cases, which is Shea's?

And what happens if we win but Shea loses -- does the DoJ appeal in
Philly and Shea appeals in NYC?

If we lose, does our appeal automatically go to the Supreme Court? The
language in the statute is unclear here -- it only specifices what
happens when the law is declared unconstitutional. But if it isn't,
can't the DoJ argue that our appeal should go to the Third Circuit
instead?

-Declan

On Wed, 15 May 1996, Declan B. McCullagh wrote:

> Speaking of appeals, I've been thinking about what happens with the CDA.
> Okay, so we have two court cases going on, the Shea v. Reno case in NYC
> and the coalition lawsuits combined in Philly.
> 
> What happens if the DoJ loses both the NYC and Philly cases and (as they
> said they would) appeals to the Supreme Court. Won't they take the
> weaker of the two cases, which is Shea's?

If they lose they are almost certain to appeal both cases.  If they don't 
appeal a loss, it means that plaintiffs won, i.e. get what they asked 
for.  The government isn't going to sit still for that while another case 
is proceeding.  

> 
> And what happens if we win but Shea loses -- does the DoJ appeal in
> Philly and Shea appeals in NYC?
> 

No problem with two sides each appealing different verdicts to the 
supreme court.  That's what it's for - to sort things out and make the 
circuits consistent.

> If we lose, does our appeal automatically go to the Supreme Court? The
> language in the statute is unclear here -- it only specifices what
> happens when the law is declared unconstitutional. But if it isn't,
> can't the DoJ argue that our appeal should go to the Third Circuit
> instead?

Sorry, I don't recall the language well enough and I'm on the road.  I 
thought it went to the Supremes no mater what; that's the usual practice, 
but i could be wrong.   there is a procedure for by-passing the Court of 
Appeal in urgent cases.  Also, if one case is on a slow track and the 
other one is on a fast track, there are procedures for getting involved, 
at least as amici, in the fast track case.

[I am away from Miami from May 8 to May 28.  I will have no Internet 
connection from May 22 to May 29; intermittent connections before then.]
 
A. Michael Froomkin        | +1 (305) 284-4285; +1 (305) 284-6506 (fax)
Associate Professor of Law | 
U. Miami School of Law     | froomkin@law.miami.edu
P.O. Box 248087            | http://www.law.miami.edu/~froomkin
Coral Gables, FL 33124 USA | It's warm there.