The authority of appellate courts to review decisions of lower courts varies widely from one jurisdiction to another.  In some places, the appellate court has limited powers of review. For example, in the United States, both state and federal appellate courts are usually restricted to examining whether the court below made the correct legal determinations, rather than hearing direct evidence and determining what the facts of the case were.

Furthermore, U.S. appellate courts are usually restricted to hearing appeals based on matters that were originally brought up before the trial court. Hence, such an appellate court will not consider an appellant’s argument if it is based on a theory that is raised for the first time in the appeal.   However, under its standard of review, an appellate court decides the extent of deference it would give to the lower court’s decision, based on the fact or law of the appeal.

Pursuant to 28 U.S.C. § 1291,the courts of appeals (other than the United States Court of Appeals for the Federal Circuit) shall have jurisdiction of appeals from all final decisions of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, except where a direct review may be had in the Supreme Court.  The jurisdiction of the United States Court of Appeals for the Federal Circuit shall be limited to the jurisdiction described in sections 1292 (c) and (d) and 1295 of this title.

In most U.S. states, and in U.S. federal courts, parties before the court are allowed one appeal as of right.  This means that a party who is unsatisfied with the outcome of a trial may bring an appeal to contest that outcome.  Since, appeals are costly, and the appellate court must find an error on the part of the court below that justifies upsetting the verdict, only a small proportion of trial court decisions result in appeals.  Some appellate courts, particularly supreme courts, have the power of discretionary review, meaning that they can decide whether they will hear an appeal brought in a particular case.

Federal appellate courts are given the discretion to dispose of a case in such a manner as justice requires.  Thus, the Supreme Court of the United States, or any other federal court of appellate jurisdiction, may affirm, modify, vacate, set aside, or reverse any judgment, decree, or order of a court which is lawfully brought before it for review.  A federal appellate court may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances[i].

Generally, on reviewing a lower court’s decision, state appellate courts can affirm, reverse, or modify the judgment.  State appellate courts also have the power to remand cases for further proceedings, including a new trial, the introduction of new evidence, clarification of a lower court’s ruling, joinder of additional parties[ii], or entry of additional findings.

However, when a lower court does not have jurisdiction over the case before it, an appellate court also lacks jurisdiction to review the merits of the claim, issue, or question presented to the lower court.

Federal appellate courts are given the discretion to dispose of a case in such a manner as justice requires.  Thus, the Supreme Court of the United States, or any other federal court of appellate jurisdiction, may affirm, modify, vacate, set aside, or reverse any judgment, decree, or order of a court which is lawfully brought before it for review.  A federal appellate court may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances[iii].

Generally, on reviewing a lower court’s decision, state appellate courts can affirm, reverse, or modify the judgment.  State appellate courts also have the power to remand cases for further proceedings, including a new trial, the introduction of new evidence, clarification of a lower court’s ruling, joinder of additional parties[iv], or entry of additional findings.

However, when a lower court does not have jurisdiction over the case before it, an appellate court also lacks jurisdiction to review the merits of the claim, issue, or question presented to the lower court.

When a federal appellate court possesses jurisdiction to decide a question of constitutional law, it will decline to do so if a less fundamental ground will suffice, if the issue is not squarely presented in an adversary context, or if the issue is so premature that the court will have to speculate as to the presence of a real injury.  Similarly, a state appellate court will not reach a constitutional issue unless the resolution of such issue is necessary for the disposition of a case.

A federal appellate court must make sure that its decision will not intrude into areas committed to other branches of the government.  Federal appellate court will also not decide questions regarding military strategy or foreign aid.  However, the political question doctrine does not bar a federal appellate court from reaching an issue if all that is presented is a question of the construction of the Constitution or of a statute[v].

The judicial power of the United States extends only to cases and controversies.  Thus, a federal appellate court can only determine a controversy between adverse parties[vi] which requires a declaration of the parties’ rights as they stand as of the time of the appellate determination.  The case or controversy requirement is satisfied when, from the start, a suit is brought in pursuance of an honest and actual antagonistic assertion of rights by one party against another, and valuable legal rights will be directly affected to a specific and substantial degree by the court’s decision.  However, the presence of a disagreement, no matter how sharp and acrimonious it may be, is insufficient by itself to meet the case or controversy requirement.  Also, the case or controversy requirement is not satisfied where the parties merely desire an abstract declaration of the law, as the federal appellate courts have no power to render advisory opinions.

While the case or controversy requirement does not prohibit a federal appellate court from reviewing a decision in a declaratory judgment action, the parties to such an appeal must still have a personal stake in the outcome of the appeal, since a federal appellate court cannot give an opinion advising what the law would be upon a hypothetical state of facts.

The case or controversy requirement subsists through all stages of the judicial proceedings, trial and appellate.  It is not enough that a controversy existed at the time the complaint was filed, or at the time the court of appeals rendered its judgment, for these situations cannot substitute for an actual case or controversy. An actual controversy must exist, so that the appeal is not moot, not only at the time the appeal is taken, but also throughout the pendency of the appeal.

While the case or controversy requirement of the Federal Constitution relates only to the jurisdiction of the federal courts, the existence of an actual controversy is also generally considered to be a prerequisite to the exercise of appellate jurisdiction by the state courts.  Thus, in the absence of a constitutional or statutory provision to the contrary, state appellate courts are neither required nor authorized to issue advisory opinions.

[i] 28 USCS § 2106

[ii] Hatfield v. Bush, 540 So. 2d 1178 (La.App. 1 Cir. 1989)

[iii] 28 USCS § 2106

[iv] Hatfield v. Bush, 540 So. 2d 1178 (La.App. 1 Cir. 1989)

[v ]State Highway Com. v. Volpe, 479 F.2d 1099 (8th Cir. Mo. 1973)

[vi] United Farm Workers v. Arizona Agricultural Employment Relations Bd., 727 F.2d 1475 (9th Cir. Ariz. 1984)