Tuesday, April 10, 2018
Bryan Lammon has posted on SSRN a draft of his article, Finality, Appealability, and the Scope of Interlocutory Review, which will be published in the Washington Law Review. Here’s the abstract:
Most of the law of federal appellate jurisdiction comes from judicial interpretations of 28 U.S.C. § 1291. That statute gives the courts of appeals jurisdiction over only “final decisions” of the district courts. The federal courts have used this grant of jurisdiction to create most of the rules governing appellate jurisdiction. But those efforts have required giving many different meanings to the term “final decision.” And those many different meanings are to blame for much of the confusion, complexity, unpredictability, and inflexibility that plague this area of law. The literature has accordingly advocated reform that would base most of the law on something other than case-by-case interpretations of what it means for a decision to be final. Before any reform, however, it is crucial to understand the ways in which the federal courts have interpreted the term “final decision.”
This article unearths the three contexts in which courts have interpreted § 1291 to create three different kinds of rules: (1) rules about when district court proceedings have ended and parties can take the classic, end-of-proceedings appeal on the merits; (2) rules about when litigants can appeal before the end of those proceedings; and (3) rules limiting or expanding the scope of review in those appeals. Though related, these contexts are distinct and involve unique issues and interests. Successful reform must fill each of the roles that interpretations of the term “final decision” have played. In the meantime, federal courts could bring some much-needed candor and transparency to this area of law by acknowledging the three different ways in which they have used this term.