Using the Scientific Method in the Law: Examining State Interlocutory Appeals Procedures that Would Improve Uniformity, Efficiency, and Fairness in the Federal Appellate System
[T}he current use of the federal interlocutory appeal process operates much like an appeal-less system. A pretrial motion is filed, the interlocutory order is given, and the petition for interlocutory review is usually denied. Thus, the case continues. It may continue into settlement negotiations or go to trial where the losing party files an appeal. That final appeal could find that the lower court erred, rendering that trial meritless. In reaching any of those stages, the adversely affected party more than likely devoted unnecessary time, resources, and finances in the case. Additionally, the parties are often unable to predict success when making a petition or appeal. Under the current system, the court does not provide any explanation to the party regarding the reasons the petition was denied. Instead, the system relies upon a broad set of confusing criteria to qualify for a grant of an interlocutory appeal without requiring any explanation to accompany the decision. The unfairness and confusion created by the current interlocutory appeal system invites many suggestions for change, including eliminating all appeals. While the above example briefly demonstrates that this elimination is too drastic, it is also impractical because historically the appellate process prohibited such an extreme change. More importantly, this measure is unnecessary. The state court systems offer demonstrative examples of successful techniques that decrease unfairness without sacrificing judicial efficiency. Thus, there is no reason to eliminate, or even create, a completely new appellate system. Rather, by adopting federalism’s historical tenet of “states as laboratories,” the interlocutory appeal system can be refined.
Note, Using the Scientific Method in the Law: Examining State Interlocutory Appeals Procedures that Would Improve Uniformity, Efficiency, and Fairness in the Federal Appellate System, 61 Clev. St. L. Rev. 259 (2013)