Faculty Journal Articles and Book Chapters
ORCID (Links to author’s additional scholarship at ORCID.org)
Abstract
This Article presents previously underappreciated and underrecognized nationwide developments concerning the transformed and broadly impactful role of subject-specific interlocutory appeal statutes and rules and to recommend a broad reset on the use of such appeals to serve the efficiency of and equal-access to the appellate system. Over the last fifty—and particularly over the last twenty-five—years, interlocutory appeals have expanded from a rarely-used, discouraged practice allowed for a limited category of irremediable trial court orders to a dynamically growing area allowing numerous, specific, and often politically or legislatively significant bases for swift appeal. The Article examines this previously unexplored, evolved, proactive, and often consequential area—involving centrally provocative legal issues ranging from abortion and gun rights to low-income public housing to sexual violence against children. For the United States appellate system grounded on the final judgment rule, which limits appeals to only final rulings, the changed role and scope of interlocutory appeals—or appeals of non-final orders—represents a reframing and notable extension of the role of appeals of non-final orders in our justice system. The effect includes crowded appellate dockets, allocation of appellate resources to certain orders favored for swift appeal—and resultingly forcing other appeals to the back of the appellate line—and appellate workload whose pace and accelerated content increasingly reflects political priorities instead of serving case-specific needs.
This Article adds three formerly unexamined and central aspects to understanding interlocutory appeals’ evolution and status, by (1) presenting the first nationwide empirical study of state interlocutory appeal statutes and rules, focusing on their substance as well as change over time; (2) identifying three phases of interlocutory appeals: from the late 1800s to today, which ends with the third phase, from 2000 to 2024 involving a significant, activist expansion in the use of particular interlocutory appeal grounds to often further law- and rule-makers’ priorities; (3) recognizing three different purposes of legislatures and courts in enacting interlocutory appeals: (a) to press forward a broad-based reform agenda, such as tort reform; (b) to further a particular legislative or court priority, or (c) to expedite a higher court’s consideration of the constitutionality of a legally questionable law.
Recognizing the booming expansion, increased politicization, and case volume pressures caused by these swelling interlocutory appeals, the Article then proposes a revamping of state interlocutory appeals systems to avoid these ills. The proposal would allow only traditional limited types of orders to merit interlocutory appeal automatically—only those that would result in irremediable, imminent harm incurable after trial. All other orders would require trial and appellate court approval to appeal before final judgment. The Article thus displays the transformed, central role played by interlocutory appeals in numerous political and legal issues and aims to inspire informed consideration of scaling back their use to serve judicial efficiency and appellate equity.
Publication Title
Seton Hall Law Review
Document Type
Article
Keywords
Appellate equity, Interlocutory appeals, Appeal abortion rights, Appeal gun rights, Judicial efficiency, Appellate procedure, Empirical studies, Politicization of appellate process, Appellate law historical shift, State appellate law, State interlocutory appeals, Expansion interlocutory appeals
Recommended Citation
Elizabeth Lee Thompson, The Changing Face and Increasingly Targeted Tool of State Interlocutory Appeals, 55 Seton Hall Law Review 483 (2024)
