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Appellate Court Voting Rules, Scott B. Smith
Appellate Court Voting Rules, Scott B. Smith
Vanderbilt Law Review
During the 1996 term, the United States Supreme Court made a candid confession about its voting practices. In Seminole Tribe of Florida v. Florida, the Court overruled Pennsylvania v. Union Gas Co. and recognized that when a justice defers to the majority against his or her own reasoning inconclusive precedent results. Union Gas was particularly unusual because Justice White switched his vote to assure a result in a three-remedy case where none of the three remedies had the support of a majority. In Seminole Tribe, the Court admitted Union Gas "has, since its issuance, been of questionable precedential value, largely …
Considering New Issues On Appeal: The General Rule And The Gorilla Rule, Robert J. Martineau
Considering New Issues On Appeal: The General Rule And The Gorilla Rule, Robert J. Martineau
Vanderbilt Law Review
One aspect of the appellate process that most bedevils judges and lawyers occurs when a party attempts to raise an issue in the appellate court that it did not present to the trial court. This question creates problems for the following reasons: (1) the general rule against considering new issues on appeal; (2) the perception that it is unfair to the appellant if the new issue is not considered, yet it is unfair to the appellee if the new issue is considered; and (3) the failure or inability of appellate courts to articulate any principled basis for determining when and …