Rules, Standards, and Experimentation in Appellate Jurisdiction

Abstract

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.