Interlocutory Appeals Research Articles

Análise jurimétrica de acórdãos fundamentados na Lei Anticorrupção e do controle judicial nos processos administrativos de responsabilização

The research examines the judicial control in administrative processes of accountability governed by the Anti-Corruption Law, by observing judicial decisions from second instance courts, encompassing Appeals, Interlocutory Appeals, Writs of Mandamus, and Necessary Reviews. The work is divided into three parts: presentation of the methodological itinerary, exposition of the doctrinal and legal aspects of the administrative and judicial processes of accountability provided for in the Anti-Corruption Law, and analysis of the collected data through the study of judgments, their grounds, and the presentation of comparative graphs. The justification for this research is based on the relevance attributed to the accountability of legal entities in the administrative sphere, as well as the importance of examining the jurisprudential actions in accountability processes governed by the Anti-Corruption Law. With the law approaching its ten-year anniversary in August 2023, there is a need for greater academic production, employing a qualitative and quantitative approach through the analysis of judicial decisions. The methodology combines techniques of bibliographic research, jurimetrics, and documentary analysis, encompassing both quantitative and qualitative approaches. The results of this study highlight inconsistencies in jurisprudence, such as difficulties in researching court websites, the application of Necessary Reviews in cases related to the Anti-Corruption Law, and the application of the theory of administrative deference on a case-by-case basis.

Mechanisms Used by Multinational Oil Companies to Derail Human Rights and Environmental Litigations Arising from the Niger Delta

Abstract Multinational oil companies (MNOCs) usually claim that they have several obligations to protect human rights and the environment where they operate and to resolve any disputes with local communities arising from their operations in the shortest possible time. However, the combative approach taken by MNOCs (e.g. several interlocutory appeals, challenging the legal standing of plaintiffs) during human rights and environmental litigations undermines these obligations because it continually denies, delays, and derails justice for the local communities. The aim of this paper is to discuss the mechanisms used by MNOCs to derail human rights and environmental litigations arising from the Niger Delta. This paper uses a comparative legal approach combined with a cross-case analysis of a selection of transnational litigations to highlight several mechanisms that fall into eight (8) categories related to oil operations – transparency, disclosure, bribery and corruption, labour/employee rights, safety and security, delays in litigations, pollution, remediation and compensation. The paper concludes that mechanisms used by MNOCs (e.g., Shell), as indicated in recent ligations arising from the Niger Delta, are at odds with their human rights obligations, thus affecting effective remedies for the people whose human rights have allegedly been affected by corporate conduct.

The rules-standards debate and Ontario Civil Procedure reform: a case for more rules?

Much theoretical work in the rules-standards discussion rests upon empirical assumptions. Are those assumptions founded, and what does that tell us about the rules-standards debate? This article looks at recent analyses of amendments to Ontario procedural law that have sought to make that law more rules-like. By mapping this recent empirical analysis onto the rules-standards debate, the author tests whether such assumptions underlying the theoretical debate are founded in the context of procedural law. And indeed they appear to be to a significant extent: recent experiences in multiple areas of procedural law (jurisdiction motions, dismissals sua sponte, summary judgment motions and interlocutory appeals) all suggest that moving in the ‘rules’ directions on the rules-standards continuum can realize many of rules’ benefits without incurring many costs of rules. This is not to suggest that the elimination of all discretionary elements of procedural law is possible or even desirable. But it does complement much theoretical work in the rules-standards debate, and puts the assumptions underlying the rules-standards debate to the test in a particular area of law.

If at First You do Not Succeed: An Overview of Remedies Available in the United States Courts of Appeals

In the United States federal court system, from a procedural standpoint, it has been the historic policy that appeals to the Courts of Appeal lie only from final decisions by the district courts. This policy, dubbed the final judgment rule, is designed to prevent a piecemeal approach to appellate practice, and to enhance efficiency and fairness. Applied overly strictly, the rule can often lead to unfair results, and even irreparable harm. This article catalogues the primary exceptions to the final judgment rule, and discusses those instances when interlocutory appeals may be taken short of district court rulings disposing of all issues as to all parties, that is, final judgments.

Even in Inspite of Interlocutory Appeal, a Lower Court Has Jurisdiction to Hear the Substantive Suit - A New Judicial Perspective in Dr Okezie Ikpeazu v. Dr Sampson Ogah (2016) LPELR-40845 (CA)

In a decision handed down on Thursday 18th August 2016, a full panel of Abuja division of the Court of Appeal seemed to have taken a novel but progressive position on interlocutory appeals when the court had the singular opportunity of interpreting the provision of Order 4 Rules 10 and 11 of the Court of Appeal Rules 2011 (which is impari materia with 2016 rules).

The Certificate of Division and the Early Supreme Court

The history and development of Supreme Court review over state courts in the early Republic is well known. The equally important history and development of Supreme Court review of federal trial courts under the “Certificate of Division” is not. This Article addresses this largely forgotten yet critically significant feature of the early Court’s appellate power. During much of the nineteenth century, the main federal trial courts were generally staffed with two judges—a Supreme Court Justice riding circuit and a resident district judge. As a result, there were often tie votes on questions of law. Congress’s remedy was the certificate of division, which called for mandatory interlocutory Supreme Court review when the judges were divided. This unusual and understudied appellate mechanism proved critical to the development of law and the role of the Court during the Chief Justiceships of Marshall and Taney, and it implicated procedural issues that are still relevant today. As this Article will show, many of the early Court’s most important cases came to it via certificate of division. And certification produced almost as many Supreme Court decisions as did the Court’s direct review of the state courts, the more widely-studied practice. In addition, because review was obligatory when there was division, disagreement between the judges was sometimes feigned, in order to steer certain legal questions to the Court that the judges wished it to hear, many of which might otherwise have escaped review. In this regard, we include a heretofore unavailable dataset that collects all cases—civil and criminal—that reached the Court via certification. And we undertake an empirical analysis of the dataset to ascertain, among other things, which Justices used (and sometimes abused) the practice. This Article will also show how certification by division allowed for practices that scholars tend to assume arose much later. For example, it provided an early opportunity for interlocutory appeals from lower federal courts, and it provided Supreme Court Justices with a form of discretionary control over the Court’s docket (simply by disagreeing with the district judge), long before discretionary review became the norm. Finally, certification was important as one of a variety of possible approaches that judicial systems use to break ties—here, by allowing an appeal as of right to a higher court.

Defense Perspectives on Fairness and Efficiency at the International Criminal Court

Over the last several years, states parties of the International Criminal Court (ICC) have put increasing pressure on the court to become more efficient. Proceedings are seen as unduly slow, and judges have been urged to rein in the parties and expedite the process. The emphasis on efficiency can advance important goals of the ICC. It can help ensure defendants’ right to a speedy trial, promote victims’ interests in closure, and allow the court to process more cases with limited resources. But as the experience of earlier international criminal tribunals shows, an unrelenting pursuit of efficiency could also interfere with other values of the criminal process, such as the protection of individual rights and the search for truth. This book chapter examines how the sharper focus on expediting proceedings at the ICC has affected defense rights and interests. Have judges, in an effort to increase the court’s efficiency, limited defense opportunities to present and examine witnesses, to review disclosure, or to file interlocutory appeals? Have concerns about cost led the court to impose unwarranted restrictions on defense investigations? Have judges urged the defense to disclose its case early on or to settle any aspects of the case with the prosecution? To begin an exploration of these questions, the chapter analyzes the findings of a survey of international criminal defense attorneys about their views of ICC procedures. While survey respondents expressed some concerns about procedural unfairness at the court, they did not believe that judges’ preoccupation with efficiency was the cause of the unfairness. Likewise, while they complained about insufficient financial and institutional support for defense work, respondents tended to place responsibility for these decisions on the Registry and States Parties, not on judges. Perhaps most surprisingly, respondents stated that certain judicial efforts to expedite proceedings—demanding earlier disclosure, filtering out charges more aggressively, and restricting victim participation—could favor defense rights. Defense attorneys could therefore leverage the court’s emphasis on expeditiousness to advocate for greater judicial regulation of prosecutorial activities.

Interlocutory Appeals in New York-Time Has Come for a More Efficient Approach

Currently, the appellate division must decide an enormous number of appeals every year.7 In light of this caseload crisis, New York must reevaluate its generous approach to interlocutory appeals.8 This Comment discusses how the appellate division can deal most efficiently with interlocutory appeals. Part II describes the history of interlocutory appeals in New York, since the creation of the appellate division. Part III explains how other jurisdictions treat interlocutory appeals. Part IV presents the current caseload crisis in the appellate division. Part V describes the controversy over unlimited interlocutory appealability. Part VI evaluates how New York can streamline its approach without sacrificing the appellate division's ability to supervise the lower courts. Part VII suggests that a modified "single justice" approach is the fairest and most efficient solution. Part VIII concludes that the legislators must take measures to streamline New York's approach to interlocutory appeals.

Dizzying Gillespie: The Exaggerated Death of the Balancing Approach and the Inescapable Allure of Flexibility in Appellate Jurisdiction

In Gillespie v. U.S. Steel Corp., the Supreme Court appeared to endorse a balancing approach to federal appellate jurisdiction, whereby courts could weigh the costs and benefits of an interlocutory appeal in any case. But the Court soon disavowed the balancing approach and today eschews case-by-case determinations of appellate jurisdiction. The common perception, then, is that Gillespie and the balancing approach are dead. But the balancing approach persists in the Courts of Appeals. In a variety of contexts, these courts have relied on the balancing approach to hear appeals. They’ve constructed doctrines based on the balancing approach. And they engage in case-by-case balancing in determining their jurisdiction. Contrary to popular belief, the balancing approach is alive and well in the Courts of Appeals.The balancing approach’s persistence — seemingly in direct defiance of the Supreme Court’s mandate — suggests that appellate judges cannot resist wielding some discretion when defining their jurisdiction. This allure of discretion poses a challenge to the primary goal of the literature on interlocutory appeals: reform. If reform is to happen, it will likely take the form of categorical rules. But if what the balancing approach’s persistence suggests is true — if appellate judges cannot completely forego using discretion in defining their jurisdiction — that threatens to undermine the certainty, predictability, and ease of application of any rules that reform might develop. I thus propose a largely novel approach to interlocutory appeal reform: a combination of categorical rules and a discretionary catchall.

Oh, Won't You Stay with Me?: Determining Whether 3 of the FAA Requires a Stay in Light of Katz

The Federal Arbitration Act (FAA) provides the legal framework to render international and interstate arbitration agreements judicially enforceable in the United States. In furtherance of that goal, it provides that if a party initiates litigation rather than arbitration of an arbitrable dispute, either party may request that the court stay the litigation pending arbitration. There is currently a split among the circuit courts in this country as to whether § 3 of the FAA requires a court under these circumstances to stay the suit or whether it has the discretion to dismiss the suit altogether.In Katz v. Cellco Partnership, the United States Court of Appeals for the Second Circuit, a leading U.S. court in creating and shaping domestic and international arbitration law, recently sided with the majority of sister circuits in holding that § 3 requires a court to stay the litigation pending arbitration. This Note argues that the proper interpretation of FAA § 3 does indeed require a stay and proposes that the Supreme Court adopt the Second Circuit’s reasoning. Further, it argues that the mandatory-stay approach is consistent with the plain meaning of the statute, as well as important policy objectives: (1) providing the pro-arbitration framework Congress intended when passing the FAA, as the Supreme Court has repeatedly underscored; (2) foreclosing interlocutory appeals of dismissals that stall arbitrations; (3) rejecting docket management as a grounds for dismissal; and (4) avoiding the general uncertainty and unpredictability of dismissals.

Expert Initiative on Promoting Effectiveness at the International Criminal Court

The raison d’etre of the present paper is to identify, from the point of view primarily of practitioners, the principal problems of effectiveness affecting the work of the Court with a view to offer practical and realistic solutions intended to improve upon the quality, cost and expeditiousness of ICC proceedings. The following recommendations are made in order to enhance the effectiveness of the Court while, at the same time, preserving the fairness of the proceedings. This study is also intended to serve a spurring function by moving the debate over the performance of the ICC to a place where shortcomings affecting the Court are called by their name and where fresh ideas and possible solutions are being discussed openly and candidly to try to resolve those challenges. The difficulties affecting the Court’s effective fulfillment of its mandate are of different types. The present paper has focused on those thought to have the greatest prejudicial effect on the ability of the Court to operate at the level expected of a permanent international criminal court. These primary areas of concern have been identified by clusters as follows: Investigations at the ICC; The Confirmation Process; Disclosure at the ICC; Presentation and Admission of Evidence; Interlocutory Appeals; Orality; Victim’s Participation before the ICC; Defense before the ICC and Issues of Effectiveness; Institution Building and Administration; and Cooperation and Witness Protection.

Process Considerations in the Age of Markman and Mantras

This article asserts that although notions of uniformity and certainty have always been part of patent law parlance, since the Federal Circuit's decision in Markman v. Westview Instruments, Inc., these noble ends have achieved mantra status. In Markman, the Federal Circuit, in the name of uniformity and certainty, characterized claim interpretation as a question of law subject to de novo review, thus positioning itself as the arbiter of claim meaning. If the Federal Circuit is unwilling to exercise greater obeisance toward district court claim interpretations, this article argues that to achieve uniformity and certainty in the context of de novo review the Federal Circuit should entertain interlocutory appeals of Markman hearings. Accordingly, this article proposes that the Supreme Court, pursuant to the Rules Enabling Act, promulgate a rule specifically permitting or requiring the Federal Circuit to hear an interlocutory appeal of a district court claim interpretation decision. The Federal Circuit, which has a special duty to promote uniformity and certainty, cannot have it both ways; that is, the court cannot employ a de novo standard of review on the one hand, and, on the other hand, refuse to entertain interlocutory appeals. Furthermore, acceptance of interlocutory appeals would foster early certainty and promote settlement negotiations. Consistent with this proposal, this article also recommends that district courts, when applicable, apply the doctrine of issue preclusion to their sister courts' claim interpretation decisions. The application of issue preclusion would promote uniformity at the district court level, and coupled with interlocutory review, would promote early certainty.

Pre- and Post-Judgment Review of Summary Judgment Denials After Ortiz v. Jordan — A Wider and Deeper Look

In Ortiz v. Jordan, 131 S.Ct. 884 (2011), the Supreme Court purported to resolve a split in the federal circuits over the circumstances under which federal appeals courts should review denials of summary judgment when the issue was raised on appeal after final judgment, after the party that was denied summary judgment also lost at trial. In fact, the Court actually decided the case on very narrow grounds, and never addressed the question that had most split the circuits: whether to embrace a legal-question exception to the general rule to refuse to entertain post-trial appeals from summary judgment denials.In this Article, I describe the pre-Ortiz circuit splits, analyze Ortiz, examine how the courts of appeals have handled the issue since Ortiz, and, in an effort to offer guidance to the federal courts of appeals and even the Supreme Court, address the issues with which the Supreme Court did not grapple in Ortiz, although it spoke to some of them in cursory fashion.By way of background, I describe the limited immediate appeal-ability of summary judgment denials and argue why interlocutory appeals of summary judgment denials should not be made more freely available to reduce the occasions for post-judgment review. I further argue that when pre-judgment appeals of denials of summary judgment are available, those appeals both are and should be permissive, rather than mandatory. More importantly, I argue that when interlocutory appeals of summary judgment denials are not available, and when they are available but are permissive and not taken (so that the issue of the correctness of those denials will be appealed, if at all, only after final judgment) post-trial, post-judgment appeals of the denials should be allowed when the denials were based on conclusions of law, rather than on conclusions that genuine issues of material fact existed. In so arguing, I disagree with the position taken in dicta by the Supreme Court in Ortiz.I offer several predicates for this conclusion in the Article. Among other things, appellants do not have adequate alternative remedies. Rule 50 motions are appropriate only for questions of the sufficiency of the evidence, and not for the kinds of legal questions that may be posed by motions for summary judgment. Moreover, law of the case principles and policies that govern the preservation of error for appeal argue against requiring Rule 50 motions as a prerequisite to appeal of summary judgment denials that were based on conclusions of law. Finally, summary judgment denials based on errors of law should be appeal-able after final judgment, in the interests of justice.In conclusion, I propose that, after final judgment, including after final judgment that follows a jury trial, denials of summary judgment that were predicated on legal holdings (and not on the existence of genuine issues of material fact) should be appeal-able as part of the appeal from the final judgment, assuming that mootness doctrines having nothing to do with the mere fact of trial have not made the issue moot. In view of the inaptness of Rule 50 motions and the questionable need for any additional motion to preserve the alleged error in a denial of summary judgment that was based upon a holding of law, before barring such appeals, the courts should make clear what other actions or omissions in the trial court will warrant a holding that the appellant has waived or failed to preserve the error in denying summary judgment that he seeks to argue on appeal.

Rules, Standards, and Experimentation in Appellate Jurisdiction

The current system of interlocutory appeals in federal court has long been criticized for its complexity and unpredictability, and federal courts scholars have long debated how best to reform it. But much of this discussion occurs at an abstract level. Scholars debate the effects of potential reforms — such as whether a particular reform will increase the number of interlocutory appeals — and these arguments have a substantial empirical element. They are often based, however, on implicit theories of judicial and litigant behavior, not empirical evidence. All of these arguments contain plausible positions on the potential effects of particular reforms. And therein lies the problem; there is no way to evaluate such arguments other than to agree or disagree with the logic and normative commitments at their core. Some empirical evidence could go a long way toward breaking the current stalemate in interlocutory appeal reform.This article offers a means of using experimentation, initiated and overseen by judges, to generate evidence about the consequences of different approaches to interlocutory appeals. Under this experimental approach, the Courts of Appeals would be permitted to take differing positions on the appealability of particular orders; repeated application of these different rules would then illustrate their effects. The courts could reassess these different rules in light of their observed consequences. Although such experimentation (sometimes called percolation) is controversial, it could work in the interlocutory appeals context. As a specific means for facilitating such experimentation, this article looks to the choice between rules and standards and suggests the modest and feasible reform of making the current collateral order exception more standard-like. In so doing, this article shows how standards can facilitate rapid and fruitful experimentation in a hierarchical judiciary, something the literature on rules and standards has often overlooked.

Are Judges Tied to the Past? Evidence from Jurisdiction Cases

Do past decisions bias judges? This Article argues that judges might be unduly affected by previously spent judicial efforts. Appellate courts, for instance, are more reluctant to reverse a case the larger the resources the trial judge invested.To provide empirical evidence for this proposition, this Article examines reversal rates of jurisdictional questions. As jurisdiction is independent of the merits, its resolution should not be affected by subsequent judicial efforts on the merits. Nonetheless, this study finds that the more resources that are invested on the merits of the case, the less likely appellate courts are to reverse the underlying jurisdiction determination. This correlation is statistically significant and non-trivial in size.This Article then discusses the normative implications of this phenomenon. The major one is reforming the final judgment rule. A broader right to interlocutory appeals would moderate appellate judges’ tendency to rely on past proceedings and improve decision-making.

An Inquiry into the ICC Appeals Chamber’s Exercise of the Power of Remand

AbstractThe ICC’s Appeals Chamber (AC) has the authority to review, on appeal, judgments, decisions, orders and the exercise of power by the Pre-Trial and Trial Chambers. The Rome Statute and the Rules of Procedure and Evidence expressly provide that the AC may confirm, reverse or amend matters on appeal, and has the power of remand in Article 81 and Article 83 appeals against decisions of acquittal, conviction or sentence. There is no express power to remand an issue in Article 82 (interlocutory) appeals. This article discusses whether the AC has the power, generally, to remand a matter to Chambers below, thereby not coming to a determination itself. The article concludes by suggesting that the AC has the power of remand, and that it springs from two sources: (1) for appeals generally, the Court’s inherent powers and (2) for Article 81 and Article 83 appeals, the Court’s Statutory powers in Article 83(2). Therefore, the AC, under its inherent jurisdiction, may exercise the power of remand for Article 82 (interlocutory) appeals.

A Primer on the Jurisdiction of the U.S. Courts of Appeals

A Primer on the Jurisdiction of the U.S. Courts of Appeals provides an introduction to the complexity and nuance in the subject-matter jurisdiction of the U.S. Courts of Appeals. The monograph examines procedural issues related to the exercise of appellate jurisdiction in appeals from final judgments and interlocutory appeals. Coverage includes civil and criminal appeals, extraordinary writs, and federal administrative agency reviews. This edition contains new sections on the future of the Courts of Appeals, judicial rulemaking, non-party appeals in criminal matters, and an updated bibliography. Research for the second edition is current through the end of the Supreme Court Term 2007-2008, and includes appellate case law through October 2008.

Achievements and Problems of the International Criminal Court: A View From Within

In order to analyse both the achievements and the challenges faced by the International Criminal Court (ICC) it is important to recall the sui generis character of the Rome Statute, and to situate the Court within the institutional framework of both past and present international justice mechanisms. Among the many achievements of the Court to date are the ones that have come from the office of the Registry. These include the unique mechanisms for providing support to victims and witnesses, the establishment of vital Court infrastructure in situation countries and the growing outreach programme. The judiciary has also had many marked successes in dealing with the situations in the Democratic Republic of Congo, Uganda, Darfur and the Central African Republic. Despite these positive developments, the Court nevertheless faces a number of significant challenges. These include the issue of state cooperation with the Court and security and safety issues faced by investigators. The expediency of proceedings is also a matter of concern where interlocutory appeals and the participation of victims threaten the right of the accused to be tried without undue delay. From the perspective of a current member of the ICC judiciary, these challenges are surmountable if efforts to improve the functioning of the Court are sustained to ensure the continued success of the ICC in the future.

Attaining Greater Predictability in Patent Claim Construction

In Markman v. Westview Instruments, Inc., the United States Court of Appeals for the Federal Circuit held that claim construction was exclusively a matter of law, and that upon appeal the district court's claim construction was subject to de novo review. These holdings remain controversial, and there are many instances where claim interpretations made by trial judges have received special deference, including rulings on motions for reconsideration and motions for vacatur, the granting of collateral estoppel effect, and even appeals before some panels of the Federal Circuit. The controversy over the holdings of Markman, together with the difficulty in comprehending the complex technical matter found in many patents, and the Federal Circuit's policy against hearing interlocutory appeals, have led to a significant number of claim constructions being overturned on appeal. Many commentators have advanced proposals that would alter the way parties and courts construe patent claims. This paper explores several of these proposals, and analyzes how effective they would be in producing greater predictability for claim construction. This writer believes that the best proposal is that advanced by Joseph Miller, requiring applicants for patents to define the terms of art and technical terms that they use in their claims. This proposal could be implemented quickly and would be likely to significantly reduce the number of claim constructions reversed on appeal. This writer concludes that while Congress has made some progress toward finding a solution to the unpredictability of patent claim construction, greater steps need to be taken, and that it is not Congress, but rather the Patent and Trademark Office, that is in the best position to quickly effect these steps.

Replacing the Crazy Quilt of Interlocutory Appeals Jurisprudence with Discretionary Review

The primary gatekeeper at the door to the federal courts of appeals is the rule that only final judgments are appealable.2 The final judgment rule has performed this role well, for the most part.3 In certain cases, however, a trial court's error on an interlocutory issue is effectively unreviewable on appeal from a final judgment. To deal with this type of injustice, the courts and Congress have created a patchwork of exceptions to the final judgment rule.