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41 Brook. L. Rev. 459 (1974-1975)
The Role of an Intermediate Appellate Court

handle is hein.journals/brklr41 and id is 483 raw text is: THE ROLE OF AN INTERMEDIATE APPELLATE COURT James D. Hopkins* As originally conceived, the role of the intermediate appel- late court in the two-tier appellate court system was a very restricted one-i.e., to relieve the then existing appellate court of congestion and overload of appeals and, by so doing, free the highest court to exercise its primary rule-making function. How- ever, as the full flow of litigation has shifted to and converged upon the intermediate appellate court and that court in turn has acquired through intimate knowledge a singular awareness of the court system's strengths and faults, prior conceptual limita- tions as to the role of the intermediate appellate court have inevitably fallen by the wayside. In this article, Justice Hopkins of the Appellate Division, Second Department of the State of New York, examines the developing role of the intermediate appellate court as a force for reform in both adjective and sub- stantive law. Justice Hopkins suggests that the court must serve a dual role: to assist the highest court in its ultimate determina- tion by rendering thorough expositions of the relative merits of alternative solutions to novel or controversial questions of law; to function as the court of last resort for the great majority of cases. Justice Hopkins concludes with the observation that a periodic re-examination by the intermediate appellate court of its own role is mandated if that court is to justify and to compe- tently discharge the increasing obligations being imposed upon it. In a court system, the process of decision-making is com- posed, as we know, both of fact-finding and rule-applying. Appel- late review subjects both components to scrutiny of varying in- tensity-fact-finding to a lesser degree, rule-applying to a greater degree. In many jurisdictions, the process ends after one appellate review, i.e., the typical two-tier system. In other jurisdictions of increasing number, a second appellate review is available in cer- tain cases, i.e., the typical three-tier system. The process ends in the three-tier system after the second appellate review is com- pleted or is found not to be available. In a two-tier system, a relationship must be established be- tween the trial court and the appellate court, their roles to be *Justice, New York Supreme Court, Appellate Division, Second Department; A.B., Columbia University, 1931; LL.B., Columbia School of Law, 1933. 459

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