Friday, April 6, 2007
Appellate jurisdiction in the federal system is a mess. The current regime has been properly criticized for both its doctrinal incoherence and its procedural complexity, and the Supreme Court has failed to address these problems despite a consistent diet of cases raising issues of appellate jurisdiction. While the critiques of the current regime are well-founded, this Article reveals that as applied in practice, federal appellate courts have drawn sensible lines between interlocutory orders that are immediately subject to appellate review and those that are not. There is a limited category of interlocutory orders (primarily orders rejecting governmental and other immunities from suit) that are immediately appealable as of right. All other interlocutory orders are potentially eligible for discretionary appellate review, although such review is sparingly exercised. The doctrinal morass of the present framework - principally the collateral order doctrine and appellate mandamus - has obscured this basically sensible structure, and has led to unnecessarily complex and inefficient procedures for seeking appellate review of interlocutory orders. This Article proposes two new theories of appellate jurisdiction that preserve the current regime's pragmatic structure without its conceptual, doctrinal, and procedural problems. First, this Article argues that the All Writs Act authorizes discretionary appeals (not just writs of mandamus), and that this is a superior method for engaging in discretionary appellate review of interlocutory orders. Second, this Article argues that for the limited category of interlocutory orders over which appellate jurisdiction is mandatory, section 1292(a)'s provision of appellate jurisdiction over orders relating to injunctions provides a more coherent doctrinal foundation than the collateral order doctrine's awkward interpretation of the term final decision under section 1291.