Scholarship

New Article on Appeals After Voluntary Dismissals

Voluntary dismissals after adverse interlocutory orders don’t create a jurisdictional problem. They instead implicate waiver.

September 6, 2023

By Bryan Lammon

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

Litigants have long tried to manufacture a final, appealable decision from these dismissals. Recently—and especially since the Supreme Court’s decision in Microsoft Corp. v. Baker—courts have thought that these dismissals created a jurisdictional problem. Either the voluntary dismissal did not produce a final decision, or the dismissal extinguished Article III jurisdiction.

But the problem with these appeals is not jurisdictional. It’s waiver. A voluntary dismissal after an adverse interlocutory decision waives the right to appellate review. The article shows the flaws in the jurisdictional rejection of this kind of manufactured finality and offers a much simpler reason for barring them. So when this issue makes its way back before the Supreme Court, the Court should recognize what the issue is, has been, and should remain: an issue of waiver.

The article is titled Voluntary Dismissals, Jurisdiction & Waiving Appellate Review, and it’s forthcoming in the University of Cincinnati Law Review. A draft is available at SSRN.

Voluntary Dismissals, Jurisdiction & Waiving Appellate Review, 92 University of Cincinnati Law Review (forthcoming 2024), available at SSRN.

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