Legal Definitions - discretionary review

Discretionary review refers to the power of a higher court to decide whether or not it will hear an appeal from a lower court's decision. Unlike an "appeal of right," where a higher court is legally obligated to review a case if certain conditions are met, discretionary review means the higher court has the choice to accept or reject the case for further examination. Courts typically exercise this discretion when a case presents significant legal questions, resolves conflicting interpretations of law among lower courts, or involves matters of broad public importance.

• Example 1: State Supreme Court Addressing a Novel Legal Issue

  Imagine a state's highest court, often called the Supreme Court, receives hundreds of requests each year to review decisions made by the state's intermediate appellate courts. The state supreme court does not have the capacity, nor is it legally required, to hear every single case. Instead, it carefully selects a limited number of cases that present a novel question of state law, such as the first interpretation of a recently passed state statute regarding data privacy, or a case where lower appellate courts have issued conflicting rulings on the same legal issue. For instance, if two different state appellate courts have reached opposite conclusions on whether a specific type of digital content is subject to state sales tax, the state supreme court might choose to hear one of those cases to provide a definitive, uniform interpretation for the entire state.

  This illustrates discretionary review because the supreme court *chooses* which cases to hear based on its own criteria of legal significance and public importance, rather than being compelled to review every appeal filed.

• Example 2: U.S. Supreme Court Granting a Writ of Certiorari

  The United States Supreme Court receives thousands of petitions each year asking it to review decisions from federal circuit courts of appeals or state supreme courts. The Supreme Court grants "writs of certiorari" (its primary method of discretionary review) in only a small fraction of these cases, typically fewer than 100 per year. It often chooses cases that present a substantial federal question, resolve a conflict among different federal circuit courts regarding the interpretation of federal law, or involve an issue of national importance. For example, if two different federal appellate courts have reached opposite conclusions on the constitutionality of a new federal regulation concerning artificial intelligence, the Supreme Court might grant certiorari to one of those cases to provide a uniform ruling across the nation.

  The Supreme Court's decision to grant or deny certiorari is a prime example of discretionary review, as it has complete control over its docket and selects cases based on their national significance and legal impact, not because it is obligated to hear them.

• Example 3: Intermediate Appellate Court Reviewing an Interlocutory Order

  During a complex civil lawsuit, a trial court might make a ruling on a procedural matter (e.g., whether certain expert testimony can be admitted) before the entire trial is finished and a final judgment is rendered. One party might believe this mid-trial ruling is fundamentally incorrect and will severely prejudice their case, but they don't want to wait until the final judgment to appeal. In many jurisdictions, a party cannot automatically appeal such an "interlocutory" (mid-trial) ruling. Instead, they must petition an intermediate appellate court, asking it to exercise its discretion to review the trial court's decision *before* the final judgment. The appellate court will only grant this request if the issue is particularly significant, involves a controlling question of law, and an immediate appeal could materially advance the ultimate termination of the litigation. For instance, if a trial judge incorrectly ruled that a key piece of evidence is inadmissible, and without it, the plaintiff cannot prove their case, the appellate court might grant discretionary review to correct the error early, preventing a lengthy and potentially futile trial.

  This demonstrates discretionary review because the appellate court is not obligated to hear the appeal of the mid-trial ruling. It *chooses* to intervene only when specific criteria for immediate review are met, recognizing that most interlocutory rulings should wait for a final appeal.