Reinventing Appellate Jurisdiction

Abstract

Appellate jurisdiction in the federal system has been properly criticized for both its doctrinal incoherence and its procedural complexity. Although these critiques are well-founded, this Article reveals that, as applied in practice, federal courts have drawn sensible lines between interlocutory orders that are immediately appealable and those that are not. A limited category of interlocutory orders, primarily those rejecting immunities from suit, are immediately appealable as of right. All other interlocutory orders are potentially eligible for discretionary appellate review. The doctrinal morass of the present framework, however, has obscured this basically sensible structure and has led to inefficient procedures for seeking appellate review of interlocutory orders. This Article proposes two new theories of appellate jurisdiction that preserve the current regime's pragmatic structure without its procedural problems. First, this Article argues that the All Writs Act authorizes discretionary appeals (not just writs of mandamus), and that such appeals are a superior vehicle for discretionary review of interlocutory orders. Second, this Article argues that for the limited category of interlocutory orders over which appellate jurisdiction is mandatory, 28 U.S.C. § 1292(a) provides a more coherent doctrinal foundation than the collateral order doctrine's awkward interpretation of the term final decision under 28 U.S.C. § 1291.

Keywords: appeal, appeals, appellate jurisdiction, courts, mandamus, collateral order doctrine, all writs act, procedure, civil procedure, appellate procedure, 1291, 1651

JEL Classification: K10, K19, K40, K41, K49