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The Collateral Order Doctrine: a New 'Serbonian Bog' and Four Proposals for Reform
Drake Law Review (1998)
  • Lloyd C. Anderson, University of Akron School of Law
In 1949, the United States Supreme Court in Cohen v. Beneficial Industrial Loan Corp. created the collateral order doctrine of federal appellate jurisdiction. Congress has established the statutory requirement that a litigant has the right to appeal only a “final decision,” which the Court has defined generally as a final judgment that “ends the litigation on the merits.” Over the years, however, the Court has crafted a number of exceptions to the final judgment rule by way of artful construction of the statutory term “final decision.” The Court in Cohen construed “final decision” to permit immediate appeal of decisions that did not end the litigation but that conclusively determined claimed rights that were separate from the merits and that were effectively unreviewable after final judgment. The Court described this new doctrine as applying only to a “small class” of decisions. For some years this was an accurate description; the collateral order doctrine was confined to very narrow circumstances in relatively few cases. Beginning in the early 1960s, however, the Court began the process of expanding the collateral order doctrine, culminating in the 1985 decision of Mitchell v. Forsyth. This doctrinal expansion has been replete with inconsistent opinions causing unacceptable confusion over which nonfinal rulings are appealable. This results in delay and disruption of ordinary trial processes and the expenditure of appellate resources. One Justice finally was led to complain that “our finality jurisprudence is sorely in need of limiting principles.” The judges of the federal circuits joined the outcry, charging that the newly expanded, but inconsistent, collateral order doctrine had caused a “litigation explosion,” fostered “regrettable expense and delay,” and led judges into a “maze” of confused and contradictory doctrinal minutiae. In 1988, amid mounting concern over congestion, delay, and expense in the federal court system, including dissatisfaction with the collateral order doctrine, Congress created a Federal Courts Study Committee composed of judges, attorneys, and members of Congress. The committee submitted its report to Congress in 1990. One of its many recommendations was to authorize the Supreme Court to promulgate rules clarifying which decisions should be characterized as final for purposes of appellate jurisdiction. Congress promptly passed legislation authorizing the Court to do so. Seven years have since passed and no rules for clarifying which decisions should be characterized as final have yet been proposed, much less adopted. A proposal to address the problems created by the final judgment rule, including the collateral order doctrine, is not even on the agenda of the Advisory Committee for the Federal Rules of Appellate Procedure. Why has this rulemaking authority remained dormant for so long, with no activity in sight, and what, if anything, should be done? Part I of this Article gives a brief overview of the statutory basis for federal appellate jurisdiction and describes the early formulation of the collateral order doctrine from its genesis in Cohen through the narrow and infrequent applications of Cohen in the decades immediately thereafter. Part II provides a detailed narrative of the expansion of the collateral order doctrine, from its roots in a 1963 decision, Construction Laborers v. Curry, to its culmination in 1985 in Mitchell, followed by calls for reform in the late 1980s. Part III describes the problems, particularly associated with the collateral order doctrine, that led Congress to grant the Supreme Court rulemaking authority to clarify which decisions are sufficiently final to confer appellate jurisdiction. Part IV evaluates the Court's recent collateral order jurisprudence and contends that the problems-explosion of purely procedural litigation over what orders are appealable-have only gotten worse, particularly in the area of qualified immunity. Part V proposes four alternative remedies: the Court should either return to the narrow collateral order doctrine of Cohen; candidly recognize that its current doctrine is best described as a flexible, multifactor test closely resembling a doctrine of discretionary interlocutory appeal; overrule the Forsyth decision that has spawned the most procedural litigation; or promulgate a new rule permitting only one qualified immunity appeal per case.
  • federal practice,
  • collateral order doctrine
Publication Date
Citation Information
Lloyd C. Anderson, The Collateral Order Doctrine: a New 'Serbonian Bog' and Four Proposals for Reform, 46 Drake Law Review 539 (1998).