Finality Rule - A Proposal for Change

• NCJ Number: 73561
• Journal: Judges Journal Volume: 19 Issue: 4 Dated: (Fall 1980) Pages: 33-38
• Author(s): A L O'Donnell; J P Frank; R Green; W B Lawless; M Rosenberg
• Date Published: 1980
• Length: 6 pages
• Corporate Author: Lawyers Conference Cmssn on Federal Courts and the Judiciary
• Publication Format: Article
• Language: English
• Country: United States of America
• Note: Based on a report to the Lawyers Conference of the Judicial Administration Division by the Lawyers Conference Commission on Federl Courts and the Judiciary

Annotation

Proposed revision to 28 U.S.C. 1292 (a) for the purpose of alleviating the workload crisis in the Federal courts of appeals is discussed; the need for remedial changes is emphasized.

Abstract

The Federal courts of appeals were created to relieve caseload congestion in the United States Supreme Court. Although the workload problem has been apparent for at least 30 years, the acute nature of the crisis has only recently been addressed. According to a recent survey, the number of appeals commenced nationwide now stands at more than 20,000, an increase of 73 percent since 1970 and 418 percent since 1960. Theories about the causes of the appellate workload crisis and related solutions abound in reports and studies. Suggested remedies include increasing the number of judgeships, screening appeals, increasing the use of orders or judgments without written opinions, and establishing a new court between the district and appellate court levels. Clearly, the complexity of the problem precludes a simple answer. However, there is one relatively small proposed change that could lead to the more effective use of an appellate judge's time and at the same time clarify a now gray area of the law; that is to codify the judicially created exceptions to the final judgment rule for Federal civil cases. Codification of the most widely accepted exceptions through proposed changes to 28 U.S.C. 1292(a) would clarify the degree of flexibility that is given to the Federal appellate courts concerning appeals from interlocutory orders and would reduce time spent on determining whether certain orders are in fact final and appealable. Specific provisions relate to the Collateral Order Doctrine, the Forgay Doctrine, the Death Knell Doctrine, and Government privilege. The proposed codification would be easy to implement and would produce benefits almost immediately. Footnote references are included in the article.