I have a new article on the variables that go into manufactured finality, its various forms, and its likely future.
October 9, 2023
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. In it, I discuss the variables that go into manufactured finality, the variety of forms it takes, and the future of those various forms after the Supreme Court’s decision in Microsoft Corp. v. Baker.
I end the article with two thoughts for the future. First, I ask whether we might better define a final decision (at least for the purposes of traditional, end-of-proceedings appeals) as existing once the district court has finished with an action. Second, I ask what role litigants (as opposed to Congress, rulemakers, and courts) should play in determining when appeals should come before the end of district court proceedings.
The article is titled Manufactured Finality, and it’s forthcoming in the Villanova Law Review. You can read the draft at SSRN, and the abstract is below.
Final decisions and final judgments play distinct roles in the law of federal appellate jurisdiction. Courts should recognize as much.
September 7, 2023
I have a new article on the distinct roles that final decisions and final judgments play in the law of federal appellate jurisdiction.
Voluntary dismissals after adverse interlocutory orders don’t create a jurisdictional problem. They instead implicate waiver.
September 6, 2023
I have a new article on appeals from voluntary dismissals after an adverse interlocutory decision.
The courts of appeals have created an asinine finality trap that they need to get rid of. The trap also makes me wonder whether we need to rethink finality.
November 29, 2022
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. But the trap also makes me wonder if we should rethink finality. Current finality doctrine largely looks to what the district court has done—has the district court actually resolved all of the claims? It might be better to instead ask whether the district court is done. That is, once the district court has finished with an action, it has issued a final decision and the court of appeals has jurisdiction.
The essay is Disarming the Finality Trap, 97 New York University Law Review Online 173 (2022). You can download a copy at SSRN. The abstract is below.
In a new article, I make the case for reforming qualified-immunity appeals—reform that includes overruling Mitchell v. Forsyth and its judicially created and judicially managed right to appeal.
April 8, 2022
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. This article reveals the full costs of qualified-immunity appeals, which are an immense source of complexity, expense, and delay in civil-rights litigation.
I’ve written a lot about qualified-immunity appeals over the last few years. This article marks the culmination of that work. It provides new empirical data on the incidence, procedural posture, and outcome of qualified-immunity appeals. It exhaustively details the ways in which federal courts have expanded the scope and availability of these appeals. It explains that these expansions add complexity, expense, and delay to civil-rights litigation with little or no offsetting benefit. And it argues that the only way forward is to overrule the Supreme Court’s decision in Mitchell v. Forsyth, which created the right to immediately appeal from the denial of qualified immunity.
The article is forthcoming in the Missouri Law Review. A draft is available on SSRN, and the abstract is below.
Jonas Anderson, Paul Gugliuzza, and Jason Rantanen have a new paper on the Federal Circuit’s use of mandamus, focusing particularly on patent cases filed in the Eastern and Western Districts of Texas.
March 31, 2022
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. (I discussed a trio of those grants in a weekly roundup last November, but those three only scratched the surface.)
The paper—titled Extraordinary Writ or Ordinary Remedy? Mandamus at the Federal Circuit—is forthcoming in the Washington University Law Review. It presents an excellent study of these developments in Federal Circuit mandamus, and it includes novel and fascinating empirical insights. It’s well worth your time. The abstract is below. And you can download the draft at SSRN.
Adam Zimmerman makes the case for class appeals: appellate courts themselves using a class action to remedy failures in individual administrative adjudication.
August 21, 2021
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.
The problem is that hundreds of so-called “channeling statutes” send administrative decisions past district courts and straight to the courts of appeals for review. The courts of appeals then review these administrative decisions individually. But this case-by-case adjudication can leave claimants without an effective remedy. As Zimmerman explains, “government agencies avoid judicial review by selectively mooting claims, forcing unrepresented parties to surmount overwhelming administrative backlogs, and denying courts critical information needed to craft meaningful relief.” Zimmerman shows that a class action—certified in the courts of appeals—can remedy the failures of individual adjudication. And the courts of appeals have the means for implementing class procedures: the All Writs Act. In fact, this procedural innovation is already occurring—the Court of Appeals for Veterans Claims has certified three classes in suits against the Department of Veterans Affairs.
I just finished a draft of the article, and it’s really good. It details an important and understudied phenomenon that has the potential for wider use. It’s well worth a read.
A draft is available on SSRN. The abstract is below.
Adam Steinman has a new article criticizing the law-fact distinction that courts sometimes use to review civil-jury verdicts de novo.
April 7, 2021
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.”
In a new article—Appellate Courts and Civil Juries—Adam Steinman argues that Federal Rule of Civil Procedure 50’s reasonable-jury standard governs appellate review of civil-jury verdicts, regardless of whether a particular issue would be treated as “legal” in other contexts. The distinction between factual and legal issues can be relevant elsewhere, such as when determining whether the Seventh Amendment’s jury-trial guarantee applies or when reviewing a district court judge’s decision on a particular issue. But that characterization, Steinman contends, should not affect the standard of review for civil-jury verdicts. When it comes to reviewing those verdicts, “Rule 50 requires deference to the jury’s conclusion on a particular issue unless that conclusion is unreasonable.” So an appellate court can refine the substantive law or police the burden of production, which preserves the court’s law-development function. But that court must “earn its ability to second-guess the jury by providing the sort of legal clarification that would benefit courts and litigants going forward.”
The article came out a few weeks ago in the Wisconsin Law Review. The abstract is below, and the article is available on SSRN. It’s well worth a read.
In a forthcoming article, I argue that the courts of appeals should stop letting municipalities tag along with their employees’ qualified-immunity appeals.
March 19, 2021
Civil-rights plaintiffs sometimes sue both the government officials who injured them and the municipal entity (city, school, county, etc.) that employed the officials. (The claims against the municipalities are often called “Monell claims,” after the Supreme Court decision that governs them.) While individual government officials can invoke the qualified immunity defense, municipalities cannot. And while government officials can immediately appeal from the denial of immunity, municipalities have no right to immediately appeal from a district court’s decision refusing to dismiss a municipal claim.
But that hasn’t stopped municipalities. They’ve instead piggybacked on their employees’ qualified-immunity appeals via the doctrine of pendent appellate jurisdiction. This practice—which I call “municipal piggybacking”—is widespread, and nearly all courts of appeals allow it. It’s also a completely unnecessary practice that creates extra work for civil-rights plaintiffs. Municipal piggybacking is just one more way in which the special appellate rules for qualified immunity make civil-rights litigation more complex, expensive, and time consuming.
In a new paper—forthcoming in the Penn State Law Review—I tackle municipal piggybacking. I trace its development in the courts of appeals. I show that the practice is unpragmatic, unnecessary, and needs to stop. And I show how municipal piggybacking is only one part of a larger set of appellate-jurisdiction rules that frustrate the pursuit of civil-rights claims.
The paper is titled Municipal Piggybacking in Qualified-Immunity Appeals, and the abstract is below. You can download the current draft on SSRN. (If SSRN asks you to create an account before downloading the paper, there’s a link on the right to download without doing so.)
Fact-based qualified-immunity appeals are an immense problem in the courts of appeals. It’s time to start using sanctions to deter them.
March 10, 2021
With rare exceptions, defendants appealing from the denial of qualified immunity at summary judgment cannot challenge the factual basis for the immunity denial. Yet defendants regularly flout this limit on the scope of interlocutory qualified-immunity appeals. They appeal from the denial of immunity to argue that the district court erred in determining what a reasonable jury could find. Appellate courts eventually dismiss these improper appeals. But at that point, the damage is done. District courts often stay proceedings pending the appeal, which can take months or years to resolve. These appeals thus add wholly unnecessary difficulty, expense, and delay to civil-rights litigation.
These appeals need to stop. In a new essay—forthcoming in the University of Illinois Law Review Online—I argue that courts need to start sanctioning defendants who take them. I show that the law governing these appeals is (to use a term from qualified immunity itself) clearly established and has been for decades. I illustrate the problem by cataloguing last year’s improper, fact-based qualified-immunity appeals, which unnecessarily delayed the underlying litigation by an average of 14 months. And I explain how sanctions might be the only way to stop these appeals.
The essay is titled Sanctioning Qualified-Immunity Appeals, and the abstract is below. You can download the current draft on SSRN. (If SSRN asks you to create an account before downloading the paper, there’s a link on the right to download without doing so.)