Considering New Issues on Appeal: The General Rule and the Gorilla Rule

One aspect of the appellate process that most bedevils judges and lawyers occurs when a party attempts to raise an issue in the appellate court that it did not present to the trial court. This question creates problems for the following reasons: (1) the general rule against considering new issues on appeal; (2) the perception that it is unfair to the appellant if the new issue is not considered, yet it is unfair to the appellee if the new issue is considered; and (3) the failure or inability of appellate courts to articulate any principled basis for determining when and under what circumstances a new issue will be considered. As a result, it is almost impossible to predict in a particular case whether or not the appellate court will consider a new issue raised by the appellant. This uncertainty reduces the value of being the successful party in the trial court and adds to the already overwhelming caseload of American appellate courts by encouraging appeals. Further, in many appeals, which would have been taken in any event, it can add two issues: whether or not to consider the new issue, as well as the merits of the issue itself. Legal scholars have paid little attention to the problem, not-withstanding the enormous implications of the decision whether or not to consider new issues on appeal. In fact, the only article on the subject was published over a half century ago. Since that time,courts increasingly are willing to consider new issues, bringing into question the continued validity of the general rule. The purpose of this Article is to reexamine the general rule against considering new issues on appeal, explore the many exceptions to it, and analyze whether courts should continue to apply the rule. The Article will also examine whether exceptions to the general rule should exist and, if so, which exceptions should be recognized and under what circumstance

The Future of Law Reviews and Legal Journals From a Student Editor's Perspective

 Law reviews and legal journals have been part of the legal academic world for more than a century. [1] These legal publications are unique because they are completely run by students. However, over the last few decades, law reviews and legal journals have been highly criticized, and some critics even predict their demise. [2] If law reviews and legal journals expect to survive and remain valuable academic resources, then certain changes need to be made, and these changes are the responsibility of the student editors. Although some legal publications are making changes for the better, such as publishing online, more can be done to improve these student-run publications. By taking advantage of technological advances, especially the Internet, law reviews and legal journals can reduce the time it takes to publish an issue. In addition, these technological advances allow legal publications to offer many new features and services for both the authors and the readers. However, updating a publication with these new technological advances can be expensive. Thus, law reviews and legal journals need to generate more income from other sources than just subscriptions

Restrictions on Publication and Citation of Judicial Opinions: A Reassessment

In response to the crisis of volume, state and federal appellate courts have been restricting the opinions they write to those opinions which will: (1) establish a new. rule of law or expand, alter, or modify an existing rule; (2) involve a legal issue of continuing public interest; (3) criticize existing law; or (4) resolve a conflict of authority. All other opinions are limited to brief statements of the reasons for the decision, go unpublished, and generally carry a prohibition against their being cited as precedent. Recently, critics have alleged a number of faults with this practice, including the supposed loss of judicial accountability, the difficulties of appellate review, the problems of predicting precedential value, the inequalities of parties\u27 access to unpublished opinions, and the illusory nature of the claims of judicial and litigant economy. In this Article, Professor Martineau demonstrates that these criticisms are based on false premises and ignore the realities of legal research and the appellate decision making process. Professor Martineau writes that limited publication and citation rules are an essential way to respond to increasing caseloads, so long as: (1) they are crafted and administered to ensure that the criteria for publication are maintained with several checks on judges\u27 discretion not to publish and (2) the prohibitions against citing unpublished opinions be enforced strictly through good example, sanctions, and structural mechanisms intended to make the opinions available less readily to people other than the immediate parties

Liver transplantation in biliary atresia with concomitant hepatoma.

Two cases are reported in which the very infrequently reported association was found of liver cell carcinoma and biliary cirrhosis secondary to congenital biliary atresia. A search of the literature revealed 4 previous reports of cases with similar pathology. Our 2 patients were both operated upon within the first few months of life, at which time congenital biliary atresia was documented, and in 1 instance temporarily corrected. They ran a progressive downhill course until they both received replacement livers, one at 4 years of age and the other at 12, at which times hepatoma was found in the excised cirrhotic livers. One patient is in good health 18 months post-transplantation. The other developed metastases but died of gastro-intestinal bleeding and pneumonia 76 days post-transplantation