Chad Oldfather has a new article on SSRN entitled “Error Correction.”  Having analyzed various other aspects of the appellate process in earlier articles, Chad here turns to the most mundane function of the appellate court.  Where most scholarship on appellate process focuses on the lawmaking authority of appellate courts, few cases actually result in appellate courts breaking important new legal ground; more commonly, appellate review is simply a search for error based on established precedents.  But what exactly is “error”?  The question has received little scholarly attention to date, but Chad now remedies that neglect in his characteristically thoughtful fashion.  Here is the abstract of his article, which is forthcoming in the Indiana Law Journal: 

Under most accounts of appellate review, error correction stands with law declaration as the core purposes of the process. Yet while a vast amount of scholarship addresses the process of judicial law creation, error correction has received comparatively little attention. Indeed, there appears to be a consensus that it is straightforward and settled, and that the lack of attention is warranted.

One goal of this article is to challenge this understanding. To be sure, the architecture of our judiciary reflects a worldview in which legal questions have correct answers and courts’ role is simply to find them. On that understanding there is nothing for appellate courts to do but correct error. We no longer inhabit that world. Instead, as the saying goes, “we are all Realists” in that we accept the indeterminacy of legal standards and recognize that courts must often make (rather than merely find) law. This jurisprudential shift has significant implications for error correction. Simply put, it is no longer meaningful to speak of trial court “error” in many cases, leaving the precise nature of the appellate role undefined and likely indefinable if we continue to conceive of it as involving a search for error. That, in turn, creates the possibility that appellate courts can implement the error correction function in widely divergent and inconsistent ways, and that this procedural malleability creates an opportunity for judicial irresponsibility.

The article’s second goal is to suggest a way out. Rather than attempting to achieve greater conceptual clarity with respect to the nature of error, the article advocates conceiving of the error correction function as involving “derivative dispute resolution.” On this view the appellate role involves not a relatively unconstrained search for “error,” but rather the task of resolving a second-order dispute between the parties concerning the propriety of the trial court’s handling of the case. Such a view, the article contends, provides a way to harness the instrumental genius of the adversary system to provide greater judicial accountability and legitimacy.