The Scope of an Appeal: What Is to Be Adjudicated Again

Abstract

This volume asks which remedies are lost where the scope of the challenge and the scope of the rehearing diverge. An appeal is not a vague dissatisfaction with the judgment as a whole. The portion open to adjudication can be precisely determined only by distinguishing the scope of the challenge, incidental appeals, and the need for remand. The path to relief opens where the scope of the challenge is specified through an appeal that satisfies the time-limit and amendment requirements or through a lawful incidental appeal, and closes where the appeal period has expired, the requirements for subsequent completion are not met, and no applicable path such as an incidental appeal is available. The six sections address, in turn, an appeal that begins with service, defects remaining in the petition of appeal, the scope of the challenge and the scope of modification, the appellee's response, the hearing after revocation of a dismissal, and citation of the reasoning of the prior judgment. The strongest counterargument is as follows. A technical error in defining the scope of the challenge may entrench a substantive error. Management of challenge schedules and long-term response strategy are not addressed in this volume.