Toward a Federal Civil Interlocutory Appeals Act

Abstract

No verbal formula yet devised can explain prior finality decisions with unerring accuracy or provide an utterly reliable guide for the future.I Surely this is so. If the federal experience alone did not suffice to convince us that this is true, then the comparisons provided in the preceding articles of this issue surely lay the matter to final rest. While jurisdiction after jurisdiction can be found to have embraced the wisdom that causes should not come up here in fragments, upon successive appeals,2 none has been discussed which has found that wisdom to be a simple one to be forthrightly applied. With varying degrees of candor and sophistication, each has hedged the finality requirement with exceptions and qualifications necessitated by shared perceptions that there are times when forthright application of a simple rule against piecemeal appeals works injustice and diseconomy. There is a unifying theme to the occasions which have resulted in the breakdown of the stricture against piecemeal appeals which is observed repeatedly in the Interlocutory Restatement on the subject which the editors presented in the previous issue of this publication.3 It is that substantial rights, generally adjective in nature, are often threatened by the nonfinal actions of trial courts. And these rights cannot always be adequately protected by the courts of appeals if they await final decision to attempt corrective action. Hence comes the widespread use of the extraordinary writs as an alternative to appeal. Hence comes the collateral order doctrine. Hence comes the doctrine of practical finality, of death knells, and more. Similar considerations have prompted similar accommodations in each of the jurisdictions we have studied. It does not follow from these considerations that the constraints against piecemeal appeals are a bad idea. Edson Sunderland, it is true, did once contend that the making of exceptions to the rule was pernicious, that once its simplicity is violated, it would occasion so much dispute that its benefits would not be worth its costs.4 While the federal experience may tend in some minds to confirm Professor Sunderland's assessment, the prevailing wisdom is that moderation in these matters is appropriate. Moderation, however, does not excuse the unconscionable