Timing as Jurisdiction: Federal Civil Appeals in Context

The purpose of these few pages is to show that the calculus of appeal timing is inherently complex. If we are to continue the effort to capture the calculus in rules, the rules will be correspondingly complex. The complex rules will have some virtues; nonetheless, the rules also are likely to generate misunderstanding and may tend to produce undesirable results. It is very tempting to replace the rules with a flexible system that relies largely on discretion to determine the occasions for appeal before a truly final judgment. Whether a flexible system has now become appropriate depends on the same institutional factors that make the calculus so complex. The best answer may be to adopt the framework for discretionary interlocutory appeals without yet abolishing present rules. As the discretionary system becomes more familiar, it should prove possible to discard many of the present rules in a gradual process of attrition