The Scope of Appellate Jurisdiction: Pendent Appellate Jurisdiction before and after Swint

The scope of appellate jurisdiction after final judgment has long been relatively clear. The scope of jurisdiction upon interlocutory appeals is far more controversial. In Swint v. Chambers County Commission, in the context of a collateral order appeal, the Supreme Court sought to curtail the scope of appellate courts' power to exercise "pendent appellate jurisdiction." In this article, Professor Steinman explores the scope of the jurisdiction that federal courts of appeals exercise when they entertain appeals involving injunctive relief, § 1292(b) and Rule 54(b) certifications, mandamus, and collateral orders. She explains how Swint erodes the legitimacy of the power and discretion that appeals courts have exercised in hearing a range of issues upon the various occasions for interlocutory appeals.

Professor Steinman then challenges the reasoning of the Swint decision and argues for a more liberal conception of the appeals courts' power and discretion. The Article explains why Rule promulgation would not be the best way to define circumstances in which appellate jurisdiction may be exercised. It concludes by proposing both a test for power and guidelines, standards, and factors to govern when federal courts should review orders that fall outside the narrowly construed literal terms of the statutory and common law authorizations of interlocutory appeals.