Monday, August 20, 2012
Two articles about the Federal Rules and appeals have been posted to SSRN.
Bryan Lammon (Washington University) has posted Rules, Standards, and Experimentation in Appellate Jurisdiction.
The current system of interlocutory appeals in federal court has long been criticized for its complexity and unpredictability, and federal courts scholars have long debated how best to reform it. But much of this discussion occurs at an abstract level. Scholars debate the effects of potential reforms — such as whether a particular reform will increase the number of interlocutory appeals — and these arguments have a substantial empirical element. They are often based, however, on implicit theories of judicial and litigant behavior, not empirical evidence. All of these arguments contain plausible positions on the potential effects of particular reforms. And therein lies the problem; there is no way to evaluate such arguments other than to agree or disagree with the logic and normative commitments at their core. Some empirical evidence could go a long way toward breaking the current stalemate in interlocutory appeal reform.
This article offers a means of using experimentation, initiated and overseen by judges, to generate evidence about the consequences of different approaches to interlocutory appeals. Under this experimental approach, the Courts of Appeals would be permitted to take differing positions on the appealability of particular orders; repeated application of these different rules would then illustrate their effects. The courts could reassess these different rules in light of their observed consequences. Although such experimentation (sometimes called "percolation") is controversial, it could work in the interlocutory appeals context. As a specific means for facilitating such experimentation, this article looks to the choice between rules and standards and suggests the modest and feasible reform of making the current collateral order exception more standard-like. In so doing, this article shows how standards can facilitate rapid and fruitful experimentation in a hierarchical judiciary, something the literature on rules and standards has often overlooked.
Andrew Pollis has posted Civil Rule 54(b): Seventy-Five and Ready for Retirement.
As we commemorate the diamond anniversary of the Federal Rules of Civil Procedure, this article takes a critical look at one of the failed rules: Rule 54(b). Although many commentators have noted difficulties with Rule 54(b), this is the first to describe them comprehensively, analyze their root causes, and offer a workable alternative.
When an order resolves a discrete claim in a multi-claim action, Rule 54(b) permits a district court to sever the order for immediate appeal by finding “no just reason for delay.” The rule was designed to ease the hardship on litigants who would otherwise have to await the conclusion of the entire case to appeal an adverse ruling.
But the rule has spawned seventy-five years of chaos. Courts struggle to evaluate whether an order fully adjudicates a discrete and severable claim. They struggle to evaluate what “no just reason for delay” really means. At the heart of the problem lies a power clash; Rule 54(b) puts the district court in charge of deciding when an appellate court is required to hear an appeal. Not surprisingly, appellate courts often resist. And they often question Rule 54(b) certifications only after full briefing and oral argument.
It is time to end the struggle. And a better solution exists. This article advocates the repeal of Rule 54(b) and, in its place, a resort to a discretionary-appeal system to permit trial courts to certify certain orders for immediate appeal and to permit appellate courts to decide whether to hear them.