Posts in category “Scholarship”

Robert H. Klonoff has posted a draft of his new article Federal Rule of Civil Procedure 23(f): Reflections After a Quarter Century. The article includes new empirical data on appeals (and attempts to appeal) under Federal Rule of Civil Procedure 23(f) and updates my study from a few years ago.…

Federal courts of appeals have spent a lot of energy determining whether litigants can appeal after a dismissal without prejudice. Some courts have declared that these dismissals are final decisions and thus generally appealable. And some courts—sometimes the same courts, albeit in different opinions—announce the opposite rule: that dismissals without prejudice are not generally appealable.…

Manufactured finality refers to litigants’ efforts to create a final, appealable decision through something other than a judicial resolution of all claims. The last few years have seen a spate of decisions on manufactured finality. But there is more to the topic than most think.

I’ve posted an article explaining as much.…

I have a new article on the distinct roles that final decisions and final judgments play in the law of federal appellate jurisdiction.…

I have a new article on appeals from voluntary dismissals after an adverse interlocutory decision.…

I’ve written a lot on this site about the finality trap in the last few years. Now I’ve published an essay on the trap in the New York University Law Review Online. I argue that the trap is asinine. And there’s an easy fix to it: let litigants disclaim the right to refile voluntarily dismissed claims.…

Although there is a concerted effort to reform or abolish qualified immunity, the prospects of doing so are uncertain. In a new article, I argue that if if qualified immunity remains in its current or a similar form, reformers should target qualified-immunity appeals. Although courts and commentators have occasionally criticized qualified-immunity appeals, they often fail to see how much damage these appeals have done.…

Mandamus is supposedly an extraordinary remedy. But a new paper from Jonas Anderson, Paul Gugliuzza, and Jason Rantanen shows that grants of the writ have become somewhat ordinary in Federal Circuit. And those grants have largely addressed venue issues in patent cases filed in the Eastern and Western Districts of Texas.…

When I think of class actions, I think of their use in district courts. But a new paper from Adam Zimmerman (forthcoming in the University of Chicago Law Review) shows that class actions can also have a place in appellate courts, where class appeals can remedy failures in administrative adjudication.…

Courts of appeals sometimes review jury verdicts de novo by characterizing an issue as a “legal” one (as opposed to a “factual” one). As much can be seen in this week’s Supreme Court decision in Google LLC v. Oracle America, Inc., in which the Court said that “the ultimate question of whether [the facts found by the jury] showed a ‘fair use’ is a legal question for judges to decide de novo.”…