Adam Steinman argues for replacing the various standards of review with a unified one, with reversal proper only if (1) there’s an error of law or (2) the appellate court is more likely to be correct.
February 17, 2021
Standards of review are a key part of appellate litigation—you cannot know whether the district court erred without knowing how the court of appeals will look at the district court’s decision. And a variety of standards of review exist, from de novo review for legal issues to clear-error review for factual issues to abuse-of-discretion review for a variety of district court decisions.
In a new article—Rethinking Standards of Appellate Review—Adam Steinman challenges the long-standing practice of assigning a standard of review to a particular issue. He would replace these various standards with a single one: the court of appeals can reverse only if it is more likely to reach the correct decision than the trial court. Steinman argues that this unified standard, coupled with the rule that errors of law always receive de novo review, would further both the error-correction and law-development purposes of appellate courts.
The abstract is below, and the article is available on SSRN. I read an earlier draft of this article and can highly recommend it—it’s very thought provoking.
The Akron Law Review symposium on federal appeals is out, exploring a variety of issues in appellate procedure and jurisdiction.
June 29, 2020
Updated to correct the publication dates in the article cites.
The Akron Law Review just published its symposium on federal appeals. The symposium collects contributions from Cassandra Burke Robertson & Gregory Hilbert, Andrew Pollis, Michael Solimine, Adam Steinman, Joan Steinman, and me. The in-person portion of the symposium was unfortunately canceled due to COVID-19. But it was a lot of fun working with the Akron Law Review and the other contributors to the symposium.
Below are abstracts from, and links to, the wonderful papers (and mine, too). All are well worth the read and very highly recommended. The entire issue is available here.
Richard Heppner addresses the categorical component of appellate-jurisdiction rules—the orders to which a rule applies—and argues for flexibility in defining new categories.
June 12, 2020
Richard L. Heppner Jr.’s article Conceptualizing Appealability: Resisting The Supreme Court’s Categorical Imperative is now available. Heppner shows that appellate-jurisdiction rules have two components: the category of orders to which the rule applies, and the conditions under which orders in that category can be appealed. Using cognitive psychology, he explores how courts create and apply different kinds of categories. And he argues that courts should have flexibility in creating new categories of appealable orders.
Kylie G. Calabrese chronicles a recent power grab by the Fifth Circuit—issuing binding precedent while denying mandamus—and the possible reasons behind it.
June 12, 2020
Kylie G. Calabrese has published a note in the Baylor Law Review titled Mandamus Madness in the Fifth Circuit: The Aftermath of In re JP Morgan. Calabrese chronicles—and criticizes—last year’s Fifth Circuit decision in In re JP Morgan Chase & Co., in which the panel denied mandamus yet purported to issue a binding holding on the underlying legal issues. She explains how this differed from past instances of appellate courts’ denying mandamus while “nudging” district courts to take another look at an issue. (We saw an example of that last year when the D.C. Circuit denied mandamus but said the district court was wrong in refusing to certify an issue for immediate appeal under 28 U.S.C. § 1292(b).) She also shows how inappropriate this decision was in its disregard for the district court and the final-judgment rule. And she explores what might have motivated the author of the JP Morgan opinion—Judge Jerry Smith—to take such an unprecedented step.
The note is a great read—interesting, well written, and short. Check it out at the link below.
Kylie G. Calabrese, Mandamus Madness in the Fifth Circuit: The Aftermath of In re JP Morgan, 72 Baylor Law Review 165 (2020), available at the Baylor Law Review.
I completed a study of Rule 23(f) petitions filed from 2013 through 2017, finding little support for common criticisms of the rule.
May 20, 2020
I’ve been studying interlocutory class-certification appeals for a while now, and my draft article on the topic—Interlocutory Class-Certification Appeals Under Rule 23(f)—is now up on SSRN. I created a dataset of petitions to appeal class-certification decisions under Federal Rule of Civil Procedure 23(f) filed from 2013 through 2017. The draft presents my findings, such as the number of petitions filed, the rate at which they’re granted (nationally and by circuit), and—when courts grant petitions to appeal—decisions on the merits of class certification.
I also analyzed whether the data support (or supports, depending on how you feel about whether data is singular or plural) two common criticisms of Rule 23(f). Rule 23(f) has few fans. Some critics contend that the rule operates largely to defendants’ benefit. Others contend that the courts apply the rule inconsistently. I found little support for either criticism in the data. And what little support there is comes with some serious caveats and needs further research.
A new Federal Judicial Center report provides some data on how the courts of appeals have decided petitions to appeal under 28 U.S.C. § 1292(b).
February 21, 2020
The Federal Judicial Center released a new report on petitions to appeal under 28 U.S.C. § 1292(b). The report—Emery G. Lee III, Jason A. Cantone & Kristin A. Garri, Permissive Interlocutory Appeals, 2013–2019—presents data on the incidence and resolution of § 1292(b) petitions terminated between October 1, 2013, and June 30, 2019. Parties filed 636 petitions to appeal in that period, and the courts of appeals granted or denied 535 (the rest were terminated procedurally). Of those 535, the courts of appeals granted 280 (52%). And when courts granted a § 1292(b) petition to appeal, the petitioning party obtained some relief (reversal in whole or in part or a vacatur) about half of the time.
The report’s executive summary is below. Thanks to Michael Solimine for sending this my way.
The rules for jurisdiction in qualified-immunity appeals needs to be clarified—and Scott v. Harris’s exception to those rules needs to go.
January 30, 2020
Updated July 2021: The article has been published in the Georgia Law Review (55 Ga. L. Rev. 959 (2021)), and the final version is available on SSRN.
Last year year I wrote that Scott v. Harris’s blatant-contradiction rule for qualified-immunity appeals is an unpragmatic and unnecessary rule that should be rejected. I also noted that I was working on an article that argued as much and used an original dataset of every blatant-contradiction decision in the 12 years since Scott to show why. The article—called Assumed Facts and Blatant Contradictions in Qualified-Immunity Appeals—is now up on SSRN.
Paul Gugliuzza tackles arising-under patent jurisdiction, including the Federal Circuit’s exclusive appellate jurisdiction.
October 30, 2019
I’ve talked several times on this site about the recently denied cert petition in Xitronix Corp. v. KLA-Tencor Corp. The case involved a maddening back-and-forth between the Federal and Fifth Circuits, with each court saying that the other had appellate jurisdiction to review a Walker Process claim. More specifically, the two circuits disagreed about whether Walker Process claims arose under the patent law. If they did, the Federal Circuit had exclusive jurisdiction; if not, the appeal should have gone to the appropriate regional court.
Paul R. Gugliuzza has posted a new article on SSRN addressing the confusion over when claims arise under the patent law, appropriately titled Rising Confusion About ‘Arising Under’ Jurisdiction in Patent Cases. It’s forthcoming in the Emory Law Journal. Here’s the abstract:
Michael Solimine's new essay challenges the current regime of interlocutory qualified-immunity appeals.
June 4, 2019
Michael Solimine’s essay Are Interlocutory Qualified Immunity Appeals Lawful? (PDF, 217KB) is now up at Notre Dame Law Review Online. Appeals from the denial of qualified immunity are a frequent topic on this blog (see here, here, and here), and anyone reading this should be interested in Michael’s essay. Here’s the abstract:
For half a century the Supreme Court has held that defendants in civil rights actions can avoid monetary liability if they demonstrate a qualified immunity for their actions. And for thirty years, the Court has held that district court denials of the qualified immunity defense are immediately appealable under the collateral order exception to the final order requirement. Controversial from the start, the qualified immunity defense has recently come under renewed stress, with calls from individual Justices and by leading voices in academia to either significantly modify or even abolish the defense. While primarily dealing with substantive aspects of the defense, this questioning also suggests a revisiting of the status quo on defendants being able to immediately appeal a denial of the defense, a task undertaken by this Essay. After briefly setting out the status quo of the qualified immunity defense, this Essay argues that the decisions permitting immediate appealability are dubious on doctrinal, functional, and institutional grounds. It further argues that the decisions should either be overruled or significantly limited, and that the Court should leave it to the rulemaking process, rather than caselaw, to carve out any exceptions to the presumption that denial of such a defense is not immediately appealable.
I read an earlier draft of this essay, and it’s excellent—highly recommended.