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Published online by Cambridge University Press: 16 February 2009
In his interesting comment on my recent article, “The Appeals Process as a Means of Error Correction,” Edward Schwartz makes two criticisms of my analysis. The criticisms have essentially to do with my assumption that an appeals court judge will base his or her decisions only on what happened at trial, and not on any inference that can be drawn from the fact that an appeal was brought. Before explaining why I do not find Schwartz's criticisms problematic, it will be helpful for me to restate the main features of the model that I examined in the article.
1. Journal of Legal Studies 24 (1995): 379–126.Google Scholar
2. In point of fact, the accuracy of the appeals courts is endogenous to the model.
3. To amplify, let the return be Rc if an error was made and Rn if it was not, so that Rc > Rn. Let the private cost of an appeal be c. (For convenience, I am using different notation from that in the article.) Then if Rc > c > Rn, appeals will be brought if and only if errors occurred. If, however, Rn > c, any disappointed litigant will bring an appeal, but a fee f can always be chosen so that Rc > c + f > Rn, in which case appeals will be brought if and only if errors occurred. Similarly, if c > Rc, a subsidy s can be chosen so that Rc > c – s > Rn, so that again, appeals will be brought if and only if errors occurred.
4. For expositional reasons, I begin with his second criticism.
5. See section II.I on inference from the fact that an appeal is brought.
6. Whether today it would be countermanded is another question, but the teachers of civil procedure whom I have queried agree that it would be viewed as unseemly and perhaps reversible error for an appeals court judge to cite the fact that an appeal was brought as a reason for his judgment.
7. See section II.D on imperfect litigant information about error, and section II.H on heterogeneity among litigants.
8. Moreover, even if trial court judges did use their inferential knowledge and always decided in plaintiffs' favor—and even if, counter to logic, there would be no unraveling of the equilibrium in which only meritorious suits arc brought—trial court judges could still err in deciding on the quantum of damages or the magnitude of punishment.
