Discretionary Jurisdiction

Discretionary Jurisdiction in the United States

Power of appellate courts that permits them to decide which cases they will review. Discretionary jurisdiction is the opposite of Mandatory Jurisdiction (Apellate Judicial Process). Appellate courts beyond the first level, most commonly courts of last resort, typically have discretionary jurisdiction. The procedures used by appellate courts with discretionary jurisdiction to screen cases varies by law and by volume of cases. The U.S. Supreme Court, for example, experiences heavy demand to review and has developed a screening process that operates at two levels. Cases viewed as not warranting close scrutiny are rejected without group discussion. For most cases, certiorari is denied in this manner. Somewhere between a quarter and a third of the cases receive closer scrutiny, which takes place in conference. If four justices agree to review a particular case, certiorari is granted. In this manner the Supreme Court reduces to about 300 (out of an original 4,000 to 5,000) the number of cases reviewed in a year. Some variation of this technique will be used by state appellate courts with discretionary jurisdiction. No state court rejects as many cases for review as the U.S. Supreme Court, so their screening approaches are seldom as stringent.

See Also

Appeal (Apellate Judicial Process); certiorari, 261; Mandatory Jurisdiction (Apellate Judicial Process), 275; Screening Criteria (Apellate Judicial Process).

Analysis and Relevance

Appellate courts with discretionary jurisdiction control their own dockets. Exercise of such authority requires establishment of at least two levels of appeals courts. If a court system has but a single appellate court, its jurisdiction must be mandatory since litigants have a right to one round of review. The key judgment for appeals with discretionary jurisdiction is often which cases to accept for review. The selected cases tend to have certain characteristics. They generally raise, for example, broad policy questions rather than narrow ones. The questions also tend to be complex and reflect uncertainties in the lower courts. An issue selected for review is often one decided differently by different intermediate level courts. Thus a court with discretionary jurisdiction will take a case in order to establish uniformity. Cases may also be selected if lower courts fail to properly adhere to higher court rulings. Discretionary jurisdiction gives an appeals court substantial power. Not only can it render authoritative decisions, but it can also establish its own priorities through case selection. Refusal to review a case by a court with discre-tionary jurisdiction leaves the decision of the court with Mandatory Jurisdiction (U.S.) intact.

Notes and References

  1. Definition of Discretionary Jurisdiction from the American Law Dictionary, 1991, California

Discretionary Jurisdiction: Open and Free Legal Research of US Law

Federal Primary Materials

The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about Discretionary Jurisdiction. This part provides references, in relation to Discretionary Jurisdiction, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).

Federal primary materials about Discretionary Jurisdiction by content types:

Laws and Regulations

US Constitution
Federal Statutory Codes and Legislation

Federal Case Law and Court Materials

U.S. Courts of Appeals
United States courts of appeals, inclouding bankruptcy courts and bankcruptcy appellate panels:

Federal Administrative Materials and Resources

Presidential Materials

Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:

Executive Materials

Federal Legislative History Materials

Legislative history traces the legislative process of a particular bill (about Discretionary Jurisdiction and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about Discretionary Jurisdiction or other topics), or locating the current status of a bill and monitoring its progress.

State Administrative Materials and Resources

State regulations are rules and procedures promulgated by state agencies (which may apply to Discretionary Jurisdiction and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting Discretionary Jurisdiction. Finding these decisions can be challenging. In many cases, researchers about Discretionary Jurisdiction should check state agency web sites for their regulations, decisions, forms, and other information of interest.

State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here:

State opinions of the Attorney General (official written advisory opinions on issues of state law related to Discretionary Jurisdiction when formerly requested by a designated government officer):

Tools and Forms

Law in Other Regions

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