Instant Replay and Interlocutory Appeals

Abstract

There is widespread agreement that the system of interlocutory appeals in federal civil cases is inadequate, and too often parties aggrieved by an erroneous interlocutory order must await final judgment before they can appeal. But there is no consensus on how best to expand upon the existing avenues of interlocutory appeals, which are a mix of discretionary appeals and appeals as of right.

This article proposes a novel approach to interlocutory appeals reform inspired by the use of instant replay in professional sports. The centerpiece of the proposal is the “challenge appeal.” Akin to how football and baseball teams can immediately challenge a limited number of on-field calls via instant replay review, each side of the case gets one “challenge appeal” by which it can appeal an interlocutory order immediately, without the need for permission by any judge. Challenge appeals combine the best aspects of discretionary appeals and appeals as of right, while striking an optimum balance between the oft-conflicting goals of error correction and efficiency. The article also suggests procedural changes designed to make challenge appeals more “instant.”

Keywords: interlocutory appeals, civil procedure, instant replay, sports

JEL Classification: K40