Discretionary review is the authority of appellate courts to decide which appeals they will consider from among the cases submitted to them. This offers the judiciary a filter on what types of cases are appealed, because judges have to consider in advance which cases will be accepted. The appeals court will then be able to decide substantive cases with the lowest opportunity cost.^[1]

Discretionary review contrasts with mandatory review, in which appellate courts must consider all appeals submitted.

[edit] Europe

The European Commission on Human Rights exercised discretionary review against the petitions it received under the European Convention on Human Rights, rejecting those that it determined were ill-founded (by showing no apparent violation), which has allowed it to manage its caseload accordingly. By doing so, the Commission has evolved from a "service organisation" to a "commonweal organisation" whose decisions create legal precedent for future cases affecting the public.^[2]

[edit] United States

For the Supreme Court of the United States, this discretion is termed the granting of a writ of certiorari ("cert"). This discretion was not granted to the Court until 1891, after its docket became clogged with pro forma appeals from various lower courts. Congress then created the United States court of appeals system divided into nine regional circuits, with the Supreme Court generally only hearing cases from the Appeals level. The Judiciary Act of 1925 further expanded certiorari, authorizing the court to determine any case from a lower level concerning "federal questions of substance." Today, 98 percent of federal cases are decided at the Appeals level.^[3]

A similar model holds in most U.S. state judiciaries, with discretionary review only available to the state's supreme court, and the appeals courts bound to hear all appeals. In North Carolina, the supreme court's choice to exercise discretionary review depends not on whether the case was decided correctly with regard to the defendant's guilt, but whether the particular legal questions raised in the appeal have a public interest, involve important legal principles, or conflict with precedents set by prior supreme courts.^[4] In Texas, discretionary review is granted to both of the state's supreme courts (Texas is one of two states with separate supreme courts for civil and criminal cases) for all but death penalty cases, which the Court of Criminal Appeals is required to review, bypassing the Texas Courts of Appeals.^[5]

[edit] References

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