Law Commons^™

Interlocutory Review By Agreement Of The Parties: A Preliminary Analysis, James Pfander, Dave Pekarek-Krohn

Faculty Working Papers

Although the nineteenth century's final judgment rule no longer represents an absolute barrier to interlocutory appellate review, scholars disagree about what should take its place. Some favor a regime of discretionary interlocutory review, with power conferred on appellate courts to select issues that warrant intervention. Others reject discretionary review as a waste of appellate resources and call upon the rule makers to identify specific categories of non-final orders that always warrant review. While the Supreme Court's collateral order doctrine bears some similarity to this process of categorization, the Court may have called a halt to the judicial recognition of new …

Collateral Review Of Remand Orders: Reasserting The Supervisory Role Of The Supreme Court, James Pfander

Faculty Working Papers

Although some might consider the appellate review of remand orders as something of a jurisdictional backwater, recent developments suggest that the rules need attention. The Supreme Court has decided no fewer than four cases in the past few years and has failed to develop a persuasive framework. Indeed, one member of the Court, Justice Breyer, has invited "experts" to solve the problem.

In this essay, I suggest that the solution lies in the Court's own hands. Rather than proposing legislative or rulemaking solutions, I call on the Court to re-invigorate its supervisory powers and conduct direct review of district court …