Heppner on Categorical Appellate-Jurisdiction Rules
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.
The abstract is below.
In federal court, various appealability doctrines govern whether a decision can be immediately appealed. Some doctrines apply to clearer categories of orders, like injunctions. Others apply to more amorphous categories of orders, like the different “final decisions” appealable under multiple interpretations of the final-judgment rule. The Supreme Court has directed courts to decide appealability based only on whole categories of orders, not on the facts of individual cases. But that categorical imperative has not stopped courts from creating varied new categories of orders to deem final-for-appeal.
This paper draws on insights from cognitive psychology to understand how courts conceive of categories of orders. Cognitive psychologists have shown that people understand the world using not only “classical categories” based on logical definitions, but also “conceptual categories” based on fuzzier, intuitive concepts of similarity and typicality. This paper approaches appealability as a two-step process—first, categorizing the order and, second, applying the appropriate doctrine. Previous interventions have focused on whether different doctrines use rules or standards at the second step. This paper focuses on the initial categorization step.
This paper makes two contributions to the study of federal appealability. First, it maps the appealability doctrines on both a rules-standards continuum and a classical-conceptual categorical continuum. It shows that different applications of the final-judgment rule employ different categorical approaches. Sometimes, when applied to formal final judgments and truly final orders, the final-judgment rule uses classical categories of finality. But in other applications, particularly the finality-for-appeal doctrines, it uses conceptual categories. Second, this paper argues that, despite the Supreme Court’s categorical imperative, courts should employ a flexible conceptual approach to identify new categories of orders that are final-for-appeal. It posits some potential features of those new conceptual categories. Over time, intuitive, conceptual categories could produce more definite classical categories, but only if courts have the opportunity to implement and iterate on them. Shutting down the finality-for-appeal doctrines because of the Court’s categorical imperative would frustrate that development.
I read an earlier draft of this article and very much enjoyed it. Heppner’s insight on the two components of appellate rules—the category of orders, and the conditions for appeal—is especially important. I highly recommend it. The link is below.
Richard L. Heppner Jr., Conceptualizing Appealability: Resisting The Supreme Court’s Categorical Imperative, 55 Tulsa Law Review 395 (2020), available at SSRN.
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