Dizzying Gillespie: The Exaggerated Death of the Balancing Approach and the Inescapable Allure of Flexibility in Appellate Jurisdiction

48 Pages Posted: 9 Mar 2016 Last revised: 11 Aug 2019

See all articles by Bryan Lammon

Bryan Lammon

University of Toledo - College of Law

Date Written: March 7, 2016

Abstract

In Gillespie v. U.S. Steel Corp., the Supreme Court appeared to endorse a balancing approach to federal appellate jurisdiction, whereby courts could weigh the costs and benefits of an interlocutory appeal in any case. But the Court soon disavowed the balancing approach and today eschews case-by-case determinations of appellate jurisdiction. The common perception, then, is that Gillespie and the balancing approach are dead. But the balancing approach persists in the courts of appeals. In a variety of contexts, these courts have relied on the balancing approach to hear appeals. They’ve constructed doctrines based on the balancing approach. And they engage in case-by-case balancing in determining their jurisdiction. Contrary to popular belief, the balancing approach is alive and well in the courts of appeals.

The balancing approach’s persistence—seemingly in direct defiance of the Supreme Court’s mandate—suggests that appellate judges cannot resist wielding some discretion when defining their jurisdiction. This allure of discretion poses a challenge to the primary goal of the literature on interlocutory appeals: reform. If reform is to happen, it will likely take the form of categorical rules. But if what the balancing approach’s persistence suggests is true—if appellate judges cannot completely forgo using discretion in defining their jurisdiction—that threatens to undermine the certainty, predictability, and ease of application of any rules that reform might develop. I thus propose a largely novel approach to interlocutory appeal reform: a combination of categorical rules and a discretionary catchall.

Suggested Citation

Lammon, Bryan, Dizzying Gillespie: The Exaggerated Death of the Balancing Approach and the Inescapable Allure of Flexibility in Appellate Jurisdiction (March 7, 2016). 51 University of Richmond Law Review 371, 2017; University of Toledo Legal Studies Research Paper No. 2016-03. Available at SSRN: https://ssrn.com/abstract=2743942 or http://dx.doi.org/10.2139/ssrn.2743942

Bryan Lammon (Contact Author)

University of Toledo - College of Law ( email )

2801 W. Bancroft Street
Toledo, OH 43606
United States

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