Slipping Through the Screen. How Do Courts Choose the Cases They Hear?

Imagine you are suing a hospital arguing that the doctors were negligent in treating your father. You win at trial, but the hospital appeals and you lose at the first appellate level. You then decide to appeal to the highest court in the country but you need the court to agree to hear your case. How likely are you to get your appeal heard? It turns out that if you just look at the bare percentages of requests to be heard, your chances differ widely depending on the country.[1] If you are in Canada, the Supreme Court grants about 10 percent of all applications to have appeals heard—in 2013, it granted 53 requests from the 509 applications.[2] If you are in the united States, on the other hand, the Supreme Court hears about the same number of appeals but they amount to less than 1 percent of appeals that seek a hearing (for 2009/2010, the Court heard 82 of 8,800 cases seeking to be heard).[3] In terms of straight numbers, the Indian Supreme Court hears the most appeals (about 7,500), and by one estimate has about twice the acceptance rate of the Supreme Court of Canada.[4]

The courts do not pick cases randomly from those that apply. Whether the court decides to hear certain appeals is important to the individuals involved but also to how the law develops in a particular country. If a court hears only constitutional cases, lower courts will be the key players in other areas of law such as contracts or family law. If a court only hears criminal appeals that favor the accused and overturns a very high percentage of these appeals, it could be a sign that the lower courts are incompetent or biased or that the high court has a particular view of how the law should develop.

So how do courts decide which cases to hear? As we will see, the rules and processes differ across courts, although the main explicit factor tends to be whether a case raises issues of public or legal significance. We can, however, imagine different ways courts can choose cases. A court may give priority to certain types of cases such as constitutional ones or cases involving the national government. The court may take into account other factors, such as the importance to other potential plaintiffs of the suit against the hospital, but whether or not the case is constitutional or involves the national government carries more weight.

Judges may, however, select cases according to their own personal views of which cases should be heard. Most simply, a judge may want the court to hear a case if she wants to either affirm or reverse the result in the lower court. If she wants you (or people in similar situations) to be able to successfully sue for medical malpractice, she will want the court to hear your appeal of the case against the hospital. A judge may be even more strategic in reaching her goals and take into account not just the result she wants but the probability that her view wins when the case is heard. A judge would potentially need to have considerable information about the case and her colleagues to calculate her odds of being on the winning side before voting for the court to hear a particular case.

These differing approaches to choosing which cases to hear have another implication. As the approaches become more or less strict or allow different types of parties to succeed, the types of parties who apply or don’t apply will change. If you know the court tends not to hear medical malpractice suits, you may be less likely to appeal. Further, of course, the court may change the test to account for a greater number of applications. If the number of applications increases, the court will have to become more selective to keep the number of cases heard by the court relatively constant.[5]

Which cases a court chooses to hear will result from a combination of these different approaches to selecting cases and the particular rules and processes that the court follows. In this chapter, we analyze which approach different high courts follow and how the various rules and processes influence this approach. To do this, we must first lay out how the rules and processes differ across courts.

  • [1] We are abstracting for the moment from the issue of jurisdiction—that is, whether this particular type of appeal is even open to be heard in all the countries we consider. We are alsoabstracting from differences in the cost of initiating an appeal in each country.
  • [2] “Category 2: Applications for Leave Submitted,” Supreme Court of Canada Statistics from2005 to 2015, online:
  • [3] Ryan C. Black & Christina L. Boyd, “Selecting the Select Few: The Discuss List and the U.S.Supreme Court’s Agenda-Setting Process” (2012) 94:4 Social Science Quarterly 1124 [Black &Boyd, “Selecting”].
  • [4] Nick Robinson, “A Quantitative Analysis of the Indian Supreme Court’s Workload” (2013)10:3 Journal of Empirical Legal Studies 570 at 588 [Robinson, “Quantitative Analysis”]. Commitment and Cooperation on High Courts. Benjamin Alarie and Andrew J. Green. © Oxford University Press 2017. Published 2017 by Oxford University Press.
  • [5] We have seen, however, that there are other ways to deal with an increase in applications. InIndia, the number of judges was increased and the panel size decreased to enable the Court tohear more cases.
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