Towards an optimal appeal: access and case management of second instance

Abstract

The attention that courts of appeal on appeal can give to cases they know has  become a “scarce resource”. Applying the methodology of Law & Economics combined  with samples of comparative law and dogmatic examination, this article  aims to validate two hypotheses: the first one is related to the need of discretional  criteria and the selection objectives of appealable cases ex post. The second, consequence  of the first, is that only in this way is possible to properly manage those  cases selected in the second instance. This proposal is like a third way that optimizes  the appeal and proportionally distributes the negative and positive externalities  of the resource. Begin by arguing that the remedy does not have as its  sole objective the correction of errors that affect one of the litigants seems to be  a necessary premise that infers the multiplicity of benefits for the system and for  the litigant, that can provide an optimal appeal.