Re: (legal) Re: CDA Dispatch #10: Last Day in Court

[Michael Froomkin <froomkin@law.miami.edu>]

On Tue, 14 May 1996, Joseph M. Reagle Jr. wrote:


>         Ok, thank you for clarifying that. One question regarding the "de
> novo," if a lower court decides to restrict its ruling to a specific aspect
> of the case ("indecency") can the higher court broaden the scope of its
> ruling, or must its ruling be with specific regards to the scope of the
> lower court. (I don't know if the appeal can be on the basis of the scope.)

If the legal issue was presented for decision below, and forms a part of
the notice of appeal, then it is properly preented to the court of appeal,
regardless of what the court below actually did.  Any other rule would
allow a trial court to prevent issues from being reviewed.  The Supreme
Court has been known, however, to decide issues that went beyond the
strict confines of these limits. Even things that weren't argued by the 
parties....  

If the appellate decision requires more facts in order to apply the 
legal principle decided by the higher court, it has the option of 
remanding the case to the trial court for more fact-finding in light of 
the legal rules explicated by the higher court.

[...]

[I am away from Miami from May 8 to May 28.  I will have no Internet 
connection from May 22 to May 29; intermittent connections before then.]
 
A. Michael Froomkin        | +1 (305) 284-4285; +1 (305) 284-6506 (fax)
Associate Professor of Law | 
U. Miami School of Law     | froomkin@law.miami.edu
P.O. Box 248087            | http://www.law.miami.edu/~froomkin
Coral Gables, FL 33124 USA | It's warm there.