Discontent and Indiscretion: Discretionary Review of Interlocutory Orders

Notre Dame Law Review, Vol. 77, No. 1, p. 175, 2001

Seton Hall Public Law Research Paper No. 1151959

94 Pages Posted: 30 Jun 2008  

Timothy P. Glynn

Seton Hall University - School of Law

Date Written: June 26, 2008

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

Suggested Citation

Glynn, Timothy P., Discontent and Indiscretion: Discretionary Review of Interlocutory Orders (June 26, 2008). Notre Dame Law Review, Vol. 77, No. 1, p. 175, 2001; Seton Hall Public Law Research Paper No. 1151959. Available at SSRN: https://ssrn.com/abstract=1151959

Timothy P. Glynn (Contact Author)

Seton Hall University - School of Law ( email )

One Newark Center
Newark, NJ 07102-5210
United States

Paper statistics

Downloads
79
Rank
253,857
Abstract Views
1,193