Document Type

Working Paper

Publication Date

4-9-2007

SSRN Discipline

Legal Scholarship Network; Litigation, Procedure & Dispute Resolution eJournals; Law & Society eJournals; Law & Society: Public Law eJournals; LSN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals

Abstract

Appellate jurisdiction in the federal system has been properly criticized for both its doctrinal incoherence and its procedural complexity Although these critiques are wellfounded 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 regimes 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 USC § 1292a provides a more coherent doctrinal foundation than the collateral order doctrines awkward interpretation of the term final decision under 28 USC § 1291

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