The Renaissance of Permissive Interlocutory Appeals and the Demise of the Collateral Order Doctrine

Reserving appeals to final judgments has a long history in the federal courts, as do exceptions to that rule. The problem has less been the existence of the exceptions, but rather their scope and application. This article addresses two of those exceptions. One is permissive interlocutory appeals codified in section 1292(b) of the Judicial Code.

That exception, requiring the permission of both the trial and appellate courts, has numerous advantages over other exceptions, has been frequently touted as such by the Supreme Court, and has been applied in several recent high-profile cases. In contrast, the collateral order doctrine, an ostensible interpretation of the final judgment rule of section 1291 of the Judicial Code, has long been the subject of persistent criticism. Courts have ameliorated the pernicious effects of the doctrine by narrowly interpreting it, and courts should continue doing that, and seriously consider abandoning the entire doctrine. This is especially true given the availability of permissive interlocutory appeals as a safety valve to the potential harshness of the final judgment rule.