E. Travis Ramey on a Rule 23(f) for Collective Actions

E. Travis Ramey (Alabama Law) has posted to SSRN his manuscript, Interlocutory Appeals in Complex Litigation: A Rule 23(f) for Collective Actions, Tul. L. Rev. (forthcoming). Here is the abstract:

The final judgment rule—the idea that parties only get one appeal, that appeal includes all issues, and that appeal occurs only after the trial court enters a final judgment—has been the foundation of appellate jurisdiction in federal courts since the Judiciary Act of 1789. But foundational rule or not, parties understandably do not always want to wait until final judgment to air grievances with the trial court’s decisions. As a result, there is an entire body of exceptions to the foundational rule; a legion of exceptions where appellate courts can exercise jurisdiction and review interlocutory orders.

As is often true, the devil is in the details. The result is that “[a]ppellate jurisdiction over interlocutory trial court rulings is among the most troublesome issues in civil procedure.” This problematic area has generated a host of criticism, and a host of law review articles. Many commentators have called for radical reforms or reimagination of interlocutory appellate jurisdiction. Yet the system of chaotic exceptions remains, largely unchanged. And more than three decades after receiving authority from Congress to redefine the final-judgment rule, the Supreme Court has acted exactly once to do so—adding an exception that allows permissive interlocutory appeals of class-action-certification decisions—Rule 23(f).

Rather than adding yet another voice to the calls for radical reimagination of interlocutory appellate jurisdiction, this Article takes a narrower approach. It looks to the reasons for the creation of Rule 23(f)—a “death knell plus” justification—and applies them to an analogous mass-action procedure not subject to Rule 23—the collective action. Sharing a desire to impose order on the disarray of interlocutory appellate jurisdiction, the Article seeks to take one bite out of the elephant by promoting a reform based on ideological consistency. That is, given that the same “death knell plus” justification for Rule 23(f) applies equally to collective-action certification decisions, consistency requires a similar exception to the final judgment rule for collective-action-certification decisions.