Conceptualizing Appealability: Resisting The Supreme Court’s Categorical Imperative

49 Pages Posted: 9 Jun 2020 Last revised: 1 Sep 2022

See all articles by Richard L. Heppner Jr.

Richard L. Heppner Jr.

Thomas R. Kline School of Law of Duquesne University

Date Written: May 13, 2020


In federal court, various appealability doctrines govern whether a decision can be immediately appealed. Some doctrines apply to clearer categories of orders, like injunctions. Others apply to more amorphous categories of orders, like the different “final decisions” appealable under multiple interpretations of the final-judgment rule. The Supreme Court has directed courts to decide appealability based only on whole categories of orders, not on the facts of individual cases. But that categorical imperative has not stopped courts from creating varied new categories of orders to deem final-for-appeal.

This paper draws on insights from cognitive psychology to understand how courts conceive of categories of orders. Cognitive psychologists have shown that people understand the world using not only “classical categories” based on logical definitions, but also “conceptual categories” based on fuzzier, intuitive concepts of similarity and typicality. This paper approaches appealability as a two-step process—first, categorizing the order and, second, applying the appropriate doctrine. Previous interventions have focused on whether different doctrines use rules or standards at the second step. This paper focuses on the initial categorization step.

This paper makes two contributions to the study of federal appealability. First, it maps the appealability doctrines on both a rules–standards continuum and a classical– conceptual categorical continuum. It shows that different applications of the final- judgment rule employ different categorical approaches. Sometimes, when applied to formal final judgments and truly final orders, the final-judgment rule uses classical categories of finality. But in other applications, particularly the finality-for-appeal doctrines, it uses conceptual categories. Second, this paper argues that, despite the Supreme Court’s categorical imperative, courts should employ a flexible conceptual approach to identify new categories of orders that are final-for-appeal. It posits some potential features of those new conceptual categories. Over time, intuitive, conceptual categories could produce more definite classical categories, but only if courts have the opportunity to implement and iterate on them. Shutting down the finality-for-appeal doctrines because of the Court’s categorical imperative would frustrate that development.

Keywords: Appeals, Concept Theory, Civil Procedure, Cognitive Psychology, Appellate Procedure

Suggested Citation

Heppner, Richard, Conceptualizing Appealability: Resisting The Supreme Court’s Categorical Imperative (May 13, 2020). 55 Tulsa Law Review 395 (2020), Duquesne University School of Law Research Paper No. 2020-04, Available at SSRN:

Richard Heppner (Contact Author)

Thomas R. Kline School of Law of Duquesne University ( email )

600 Forbes Avenue
Pittsburgh, PA 15282
United States

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