University of Notre Dame

A Textualist Defense of a New Collateral Order Doctrine

November 29, 2023

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A Textualist Defense of a New Collateral Order Doctrine

Adam Reed Moore*

As a general rule, federal appellate courts have jurisdiction over “final decisions.”  Though the rule seems simple enough, the Court’s current approach to interpreting “final decisions,” the collateral order doctrine, is anything but straight­forward.  That is because the Court has left the statutory text by the wayside.  The collateral order doctrine is divorced from statutory text and is instead based on policy considerations.

Commentators (and, at times, the Court) have offered an alternative reading of “final decisions”: the final-judgment rule.  This rule would allow appeals from final judgments only.  But this alternative is not the product of close textual analysis.  Nor is it faithful to the relevant statute’s original meaning.  In fact, the Court has never made a serious attempt to interpret “final decisions” as that phrase was understood when enacted. 

This Article fills that gap, leveraging corpus linguistics evidence to discover the original, ordinary meaning of “final decisions.”  Adding that corpus evidence to clues from historical context and interstatutory analysis, neither the current collateral order doctrine nor the final-judgment rule reflects the ordinary meaning of “final deci­sions.”  Instead, “final decisions” include final judgments, other decisions that end litigation on the merits, and orders deciding issues that are ancillary to the merits and will not be revisited.  This is the new, text-conscious collateral order doctrine that the Court should adopt.

© 2023 Adam Reed Moore.  Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review Reflection, and includes this provision in the copyright notice.

*Law Clerk, United States Court of Appeals for the Sixth Circuit.  J.D., BYU Law School.  I express my gratitude to Professor Aaron Nielson and Dean David Moore for their helpful edits on earlier drafts of this Article, former Justice Tom Lee for fascinating classes on statutory interpretation, and the team at Becket for the work experiences that prompted my interest in this subject matter.  I also thank the skilled editing team at the Notre Dame Law Review and, as always, Aspen Moore.