Discontent and Indiscretion: Discretionary Review of Interlocutory Orders

Abstract

Commentators frequently criticize the rules governing appellate review of interlocutory orders in the federal courts. Many have contended that the existing regime - consisting of statutory, rule-based, and judge-made exceptions to the final judgment rule - is incoherent and inefficient. The fashionable response to these perceived woes is to vest in the circuit courts discretion to decide which interlocutory orders to review. The calls for a discretionary approach bore some fruit in the enactment of Rule 23(f) of the Federal Rules of Civil Procedure, which provides for discretionary review of class certification orders.

This Article challenges the prevailing view and argues that discretionary review is not the answer. Contrary to common belief, the existing regime is relatively healthy: the exceptions to the final judgment rule are clear, coherent, and produce limited collateral litigation. Moreover, discretionary review is far more problematic than its advocates foresee. This Article concludes that strategic expansion of mandatory review to address problematic areas of the law is a better approach to reform.

Keywords: final judgment, appellate review, appellate jurisdiction, final order, collateral order, mandamus, 1291, 1292, 54(b), discretionary review, certiorari, cohen doctrine, perlman doctrine, final decision, circuit courts, 23(f), interlocutory, certification, immediate appeal, mandatory review