Interlocutory Review by Agreement of the Parties: A Preliminary Analysis

Abstract:     
Although the nineteenth century’s final judgment rule no longer represents an absolute barrier to interlocutory appellate review, scholars disagree about what should take its place. Some favor a regime of discretionary interlocutory review, with power conferred on appellate courts to select issues that warrant intervention. Others reject discretionary review as a waste of appellate resources and call upon the rule makers to identify specific categories of non-final orders that always warrant review. While the Supreme Court’s collateral order doctrine bears some similarity to this process of categorization, the Court may have called a halt to the judicial recognition of new categories in its 2009 decision in Mohawk Industries, Inc. v. Carpenter.

In this Article, we suggest a new approach to interlocutory review that combines elements of discretion and categorization. We argue that the district court should be empowered to certify a question for interlocutory review (categorically) whenever the parties to the litigation so agree (in the exercise of joint discretion). Drawing on the case-selection literature, we show that the parties will often share a financial interest in interlocutory review where they recognize that a decisive issue of law will survive any trial court disposition. Where the costs of preparing the case for trial are substantial and the risks of appellate invalidation significant, the parties have more to gain than lose through appellate review. What’s more, the orders chosen by agreement of the parties make good candidates for immediate appellate review. Agreed-upon review will occur only as to issues that the parties regard as presenting close questions that the jury cannot settle.

Number of Pages in PDF File: 55

Keywords: appeal, settlement, interlocutory review, civil procedure, litigation and arbitration

JEL Classification: K10, K40

Accepted Paper Series