Manufactured Finality

Abstract

Manufactured finality is an umbrella term for the various ways that federal litigants try to create a final, appealable decision. And it has an uncertain future after the Supreme Court’s decision in Microsoft Corp. v. Baker. Yet existing studies of manufactured finality have failed to appreciate its nuances. Several different varieties of manufactured finality exist. Each applies in different contexts, implicates different interests, and has different prospects for future use after Microsoft. In this article, I comprehensively detail the variables that go into manufactured finality, create a typology of the various forms of manufactured finality that appear in the courts of appeals, and address Microsoft’s impact on each of those forms.

In the course of doing so, I raise two larger issues. The first concerns how we define finality. The predominant conception of finality looks to the substance of a district court’s decision, asking if that court has actually disposed of all claims in an action. The law of appellate jurisdiction might be improved by shifting the focus to asking simply whether the district court has finished with an action. The second issue concerns the role that litigants play in determining when they can appeal. As things stand, courts have essentially complete control over those matters. Experience with manufactured finality suggests that litigants should have some say in identifying proper opportunities for interlocutory appeals, too.

Keywords: appellate jurisdiction, appellate procedure, appeals, federal jurisdiction, civil procedure