ARE JUDGES TIED TO THE PAST? EVIDENCE FROM JURISDICTION CASESportal.idc.ac.il/he/lawreview/conferences/documents/2014-lavie.pdf · The Article discusses the normative implications

ARE JUDGES TIED TO THE PAST?EVIDENCE FROM JURISDICTION CASES

Shay Lavie*

Do past decisions bias judges? The Article argues that judgesmight be unduly affected by previously spent judicial efforts.Appellate courts, for instance, are more reluctant to reverse a casethe larger are the resources the trial judge invested in it.

To provide empirical evidence for this proposition, the Articleexamines reversal rates of jurisdiction questions. As jurisdiction isindependent of the merits, its resolution should not be affected bysubsequent judicial efforts on the merits. Nonetheless, this studyfinds that the more resources are invested on the merits of thecase, the less likely appellate courts are to reverse the underlyingjurisdiction determination. This correlation is statisticallysignificant and non-trivial in size.

The Article discusses the normative implications of thisphenomenon. The major one is reforming the final judgment rule.A broader right to interlocutory appeals would moderate appellatejudges’ tendency to rely on past proceedings and improvedecision-making.

INTRODUCTION.........................................................................................................2I. THEORETICAL FRAMEWORK .............................................................................4II. METHODOLOGY ................................................................................................ 6

A. Jurisdiction versus Merits.........................................................................6B. The Database ............................................................................................ 10

III. RESULTS AND DISCUSSION................................................................................11A. The Variables and Descriptive Statistics ..................................................11B. Correlating Judicial Efforts with Reversal Rates .....................................13C. Robustness Checks....................................................................................15

IV. NORMATIVE IMPLICATIONS...............................................................................18

* Assistant Professor, Tel Aviv University School of Law. E-mail:[email protected]. I am grateful to Ben Alarie, Jim Greiner, Alon Klement, HaimMachluf, Geoffrey Miller, Ed Morrison, Jacob Nussim, David Rosenberg, Bill Rubenstein,Michael Sabin, Steve Shavell, Adam Shinar, Jennifer Shkabatur, Magnus Söderberg, KathySpier, Matthew Stephenson, Andrew Tuch, and participants in the American, Canadian,and Israeli Law and Economics Associations Annual Meetings, and the Law andEconomics workshops at Bar-Ilan University and the Hebrew University of Jerusalem forfruitful discussions and comments. The ISEF Foundation’s support has made this researchpossible.

2 TIED TO THE PAST (draft 02/14)

A. The Final Judgment Rule..........................................................................19V. ALTERNATIVE READINGS OF THE FINDINGS......................................................26

A. Alternative Concepts of Jurisdiction ........................................................26B. Other Concerns.........................................................................................29

CONCLUSION............................................................................................................33APPENDIX ................................................................................................................34

“[R]easonable caution is needed to be sure that mooted litigation isnot pressed forward ... solely in order to obtain reimbursement of sunk-costs.”

~ Lewis v. Continental Bank Corp., 494 U.S. 472, 480 (1990)

“[A]rgument from sunk costs [to the judicial system] does not licensecourts to retain jurisdiction over cases in which one or both of the partiesplainly lack a continuing interest.”

~ Friends of the Earth v. Laidlaw, 528 U.S. 167, 192 (2000)

INTRODUCTION

A defendant raises a preliminary defense. The trial court denies, andproceeds to the merits. The defendant loses on the merits, appeals, andreiterates the same preliminary defense. Upon ruling on the preliminarydefense, is the court of appeals influenced by the judicial efforts that thetrial court has spent on the merits of the case? While this might be acommon intuition,1 this Article is the first to provide empirical evidence.2

1 Cf., the arguments that judges assign excessive weight to past decisions whendeciding whether to deviate from a precedent (Rafael Gely, Of Sinking and Escalating: A(Somewhat) New Look at Stare Decisis, 60 U. PITT. L. REV. 89 (1998); Goutam U. Jois,Stare Decisis Is Cognitive Error, 75 BROOK. L. REV. 63 (2009)); that judges tend to stick tothe current status quo (Robert L. Scharff and Francesco Parisi, The Role of Status Quo Biasand Bayesian Learning in the Creation of New Legal Rights, 3 J. L. ECON. & POL'Y 25(2006)); that judges who decide preliminary injunctions suffer from a “lock-in” effect whenthey later rule on the merits (Kevin J. Lynch, The Lock-In Effect of PreliminaryInjunctions, 66 FLA. L. REV. (forthcoming); and the claim that courts take into accountirrelevant investments previously made by agencies (David E. Cole, Judicial Discretionand the ‘Sunk Cost’ Strategy of Government Agencies, 30 B. C. ENVTL. AFF. L. REV. 689(2003)).

2 Relevant literature has found a “status quo” bias, i.e., judges stick to their own priordeterminations. See, e.g., Magnus Söderberg, Uncertainty and Regulatory Outcome in the

TIED TO THE PAST (draft 02/14) 3

Though this phenomenon has far-reaching implications for theappropriate design of the appeals process, there has been no attempt to findevidence of it. The absence of empirical evidence stems from severemethodological difficulties. Judges might appear to be influenced by priordecisions; but in fact, large efforts spent on previous decisions indicatebetter decision-making. In the context of appeals, longer adjudication at thetrial court might be taken as a proxy for a better judgment, hence leading tofewer reversals. A proper research design, then, should focus on theinfluence of previous judicial efforts that are irrelevant to the quality of thedecision.

This Article introduces such a design. It relies on the distinctionbetween jurisdiction determinations and decisions on the merits. As will beexplained in further detail, jurisdiction questions typically possess severalunique characteristics: They are essential to adjudication; a lack ofjurisdiction mandates dismissal; the parties cannot waive or createjurisdiction by consent; and jurisdiction is decided at the outset of thelitigation. In short, jurisdiction determinations are independent of themerits. They should not be decided differently due to subsequent judicialefforts on the merits. Therefore, a correlation between reversals ofjurisdiction questions and judicial efforts on the merits can indicate thatappellate judges are unduly influenced by past decisions.

Against this backdrop, I created a database containing 375 appellate-court decisions in which the trial court’s subject-matter jurisdiction ischallenged. An analysis of the database reveals that jurisdictiondeterminations that were followed by a bench/jury trial are less likely to bereversed. In contrast, jurisdiction determinations that are followed by a non-trial judgment are reversed more often. Therefore, the findings demonstratethat the more judicial efforts spent on the merits, the less likely the appellatecourt is to reject the trial court’s jurisdiction. This correlation is statisticallysignificant, considerable in size, and robust under various specifications. Itsuggests that many denied appeals should have been accepted.

Having found this evidence, the Article proposes several modificationsin legal procedure to cope with this phenomenon. The most effective toolwould be to avoid the very situations in which a mistaken determination isfollowed by additional judicial efforts. This can be achieved throughreforming the final-judgment rule, as a broader right to interlocutoryappeals prevents the accumulation of unreviewed judicial efforts. TheArticle delineates the possible scope of such interlocutory appeals, relyingon examples of interlocutory review from class certification decisions andorders compelling and refusing to compel arbitration. Finally, the Article

Swedish Electricity Distribution Sector, 25 EUR. J. LAW ECON. 79 (2008).


addresses alternative readings of the empirical findings. What if judges say“jurisdiction,” but really mean something else? Can the findings beexplained by trial judges’ and/or litigants’ behavior?

Part I sets the theoretical framework. Part II discusses themethodology, and Part III describes the results. Part IV suggests normativeimplications. Part V examines alternative explanations, and Part VIconcludes. The Appendix presents statistical data.

I. THEORETICAL FRAMEWORK

This Article examines whether appellate judges are influenced by themere efforts trial judges invested, however irrelevant these efforts are. Whyshould appellate judges care about irrelevant efforts previously spent on thecase? What makes appellate judges committed to the path taken by trialjudges?

The behavioral literature addresses a similar phenomenon, named the“sunk-cost,” “entrapment,” or “escalation of commitment” effect.3 Whiledecision-makers should disregard fixed, already-incurred and irrelevantcosts when deciding to move forward,4 people often do take these costs intoaccount.5 Some of the reasons the literature provides for this phenomenonseem relevant to the judicial context. The following are the three mainrelevant explanations.

The first one is cognitive biases—people simply tend to justify aprevious course of action.6 “[I]ndividuals have an almost uncanny ability tobias facts in the direction of previously accepted beliefs and preferences.”7

The magnitude of this phenomenon varies. Individuals with high self-esteem, for instance, tend to be more committed to their original decisions.8

3 Itamar Simonson and Barry M. Staw, Deescalation Strategies: A Comparison ofTechniques for Reducing Commitment to Losing Courses of Action, 77 J. APPLIED

PSYCHOL. 419, 419 (1992).4 See, e.g., Russell B. Korobkin & Thomas S. Ulen, Law and Behavioral Science:

Removing the Rationality Assumption from Law and Economics, 88 CAL. L. REV. 1051,1124 (2000). The same wisdom—of avoiding fixed costs that were incurred when decidingto move forward—is associated with some popular aphorisms such as “don't cry overspilled milk” and ”you can't turn back the clock” (RICHARD A. IPPOLITO, ECONOMICS FOR

LAWYERS 116 (2005)).5 In an illustrative experiment it was found that people ate less when they received a

refund for an “all-you-can-eat” lunch, compared to those who had to pay for it themselves(RICHARD H. THALER, QUASI RATIONAL ECONOMICS 11–13 (1991)). See Gely, supra note1, at 96, for other daily examples.

6 See Barry M. Staw & Jerry Ross, Behavior in Escalation Situations: Antecedents,Prototypes and Solutions, 9 J. ORGAN. BEHAV. 39, 53 (1987).

7 Id., id.8 Id., at 49. When the behavior has been entered into freely and publicly, the binding


This explanation can be relevant to the judicial context. Indeed,previous experiments have found that federal judges are not immune tocognitive biases.9 Nonetheless, in the context of appeals, where one judgereviews a course of action taken by another judge, the cognitiveexplanations seem weaker.10

The second explanation is social—decision-makers desire to rationalizetheir actions to others,11 and not to appear wasteful.12 Similarly, when socialnorms favor consistency, the commitment to the past is stronger.13 Thegreater the need in justifying decision-making, the more a losing course ofbehavior is likely to persist.14 Those who are politically vulnerable, forexample, are more likely to suffer from this phenomenon.15

This explanation seems relevant to the judicial context. It also pertainsto appellate decision-making, to the extent that wastefulness andinconsistency (or the appearance thereof) reduce litigants’ and the public’sconfidence in courts.16 The greater the need to justify judicial decision-making, the stronger is the inclination to commit to prior decisions.

The third explanation is organizational—due to administrative inertia,deviating from a heavily invested course of action yields friction and is lesslikely to occur.17 This explanation seems relevant to the context of appellate

effect is heightened (id.., at 52).9 See, e.g., Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich, Inside the Judicial

Mind, 86 CORNELL L. REV. 777 (2001) (finding several cognitive biases among federaljudges).

10 Indeed, the commitment effect is reduced—but not eliminated—when subsequentdecisions are made by different decision-makers. Jerry Ross & Barry M. Staw,Organizational Escalation and Exit: Lessons from the Shoreham Nuclear Power Plant, 36ACAD. MANAGE. J. 701, 726 (1993); Hal R. Arkes & Catherine Blumer, The Psychology ofSunk Cost, 35 ORGAN. BEHAV. HUM. DEC. 124, 134–35 (1985). But see Brian H. Bornstein& Gretchin B. Chapman, Learning Lessons from Sunk Costs, 1 J. EXP. PSYCHOL-APPL.251, 264 (1995), who show that in some situations bifurcated decision-making is moreprone to errors.

11 Ross & Staw, supra note 10, at 717.12 Arkes & Blumer, supra note 10, at 125; Bornstein & Chapman, supra note 10, at

252–53; Hal R. Arkes & Peter Ayton, The Sunk Cost and Concorde Effects: Are HumansLess Rational Than Lower Animals?, 125 PSYCHOL. BULL. 591, 598–99 (1999).

13 Staw & Ross, supra note 6, at 57–59.14 Id., at 55–56.15 Ross & Staw, supra note 10, at 717.16 In the same vein it has been argued that reversing a decision might generate a new—

and inconsistent—decision, hence allegedly “[introducing] misgivings about the judicialsystem that will undermine its legitimacy” (Qian A. Gao, Note, “Salvage Operations AreOrdinarily Preferable to the Wrecking Ball”: Barring Challenges to Subject MatterJurisdiction, 105 COLUM. L. REV. 2369, 2389 (2005)). Cf. the “judicial legitimacy” and the“system justification theory” arguments for overly sticking to precedents (Jois, supra note1).

17 Staw & Ross, supra note 6, at 59–63, especially at 61–62. For the organizational


decision-making. In particular, proximity among judges might hinderappellate judges from nullifying their fellows’ efforts.

With this background on the reasons behind appellate judges’ reluctanceto deviate from a heavily invested prior course of action, the next Partdiscusses the methodology taken to test this observation.

II. METHODOLOGY

There are, then, various reasons that make appellate judges more likelyto affirm prior decisions in which the trial judge put considerable efforts,regardless of the quality of the lower court’s decision. While there might besupportive anecdotal evidence of this practice,18 this Article makes a morerigorous inquiry.

One can look for a correlation between reversals and judicial efforts atthe trial court. However, such a correlation is not a reliable piece ofevidence. Rather, it may reflect alternative phenomena: larger judicialefforts at the trial level can indicate that the trial judge had a better factualknowledge of the case, and/or achieved a more accurate legal judgment.Appellate judges would take a larger judicial input at the trial level as aproxy for a better decision.19 Prior efforts, then, are not independent of theoutcome. Hence, the research design should focus on prior judicial effortsthat do not improve decision-making. This is the methodological difficultythat this paper seeks to overcome by the distinction between jurisdiction andmerits decision-making.

A. Jurisdiction versus Merits

In order to find a correlation between reversals and irrelevant judicialefforts at the trial level, this Article suggests a methodological innovation:focusing on questions of subject-matter jurisdiction. The idea is simple—jurisdiction is independent of the merits. No matter how much work a trialjudge invests on the merits, these efforts have nothing to do with the quality

context see also Arkes & Blumer, supra note 10, at 134–35; Keiko Aoki et al., Effects ofPrior Investment and Personal Responsibility in a Simple Network Game, 13 CURRENT

RES. SOC. PSYCHOL. 10, 18–19 (2007).18 See, e.g., Motorola Credit Corporation v. Uzan, 388 F.3d 39, 55–56 (2d Cir. 2004)

(denying a “substantial” claim due to, inter alia, the fact that “significant (and probablynon-duplicable) judicial resources [were expended]”). See also the sources cited in supranote 1.

19 Note, though, that this logic implies that trial judges might over-invest in the case inorder to signal a more accurate decision and lower the odds of reversal. Cf. the commonlaw and economics perception that judges are eager to clear their dockets (e.g., RICHARD A.POSNER, ECONOMIC ANALYSIS OF LAW 569–73 (7th ed. 2007)).


of his or her jurisdiction determination. Appellate judges, hence, shoulddisregard the merits when they review the trial court’s jurisdiction.

The sharp doctrinal distinction between jurisdiction and merits is well-grounded. Subject-matter jurisdiction only delineates “the classes of cases .. . falling within a court's adjudicatory authority.”20 Typically, questions ofjurisdiction are purely legal ones, and do not require factual inquiry. Theyare also decided at the outset, before evidence is proffered.21 Thus, the trialcourt has no comparative advantage vis-à-vis the appellate court indetermining jurisdiction.22

Most importantly, jurisdiction is an essential requirement toadjudication. Appellate courts cannot rely upon ambiguous jurisdictiondeterminations of the trial court, regardless of the decision on the merits.23

“Without jurisdiction the court cannot proceed at all in any cause.Jurisdiction is power to declare the law, and when it ceases to exist, the onlyfunction remaining to the court is . . . dismissing the cause.”24 Theoreticallyat least, a want of subject-matter jurisdiction is never a harmless error.25

Considerations like the amount of work invested in the proceedings or insubsequent litigation should not matter to the appellate court even when theresult on the merits is totally correct.26 As the Court cautions, an “argument

20 Kontrick v. Ryan, 540 U.S. 443, 455 (2004). It is “the extent to which a court canrule on the conduct of persons or the status of things” (BLACK'S LAW DICTIONARY (9th ed.2009)).

21 See, e.g., Steel Company v. Citizens for a Better Environment, 523 U.S. 83 (1998)(an Article Three standing jurisdiction question). The Court, per Justice Scalia, forcefullycondemns the practice of adjudicating the merits before deciding the preliminaryjurisdiction dispute, without adjudicative case or controversy (“hypothetical jurisdiction”).See also Mansfield, Coldwater & Lake Michigan Railway Co. v. Swan, 111 U.S. 379, 382(1884) (“the first and fundamental question is that of jurisdiction”).

22 The trial court may ask for evidence, such as additional affidavits, to resolve thejurisdiction dispute. See, e.g., Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36,40 (D.C. Cir. 2000). In any event, extensive factual inquiry on the merits has no bearing onprior resolution of questions of jurisdiction.

23 “Subject-matter jurisdiction is so central to the district court's power to issue anyorders whatsoever that it may be inquired into at any time, with or without a motion, byany party or by the court itself.” Craig v. Ontario Corp., 543 F.3d 872, 875 (7th Cir. 2008).

24 Ex parte McCardle, 7 Wall. 506, 514 (1868). See also U.S. v. Tran, 234 F.3d 798,807 (2d Cir. 2000): “Where the district court acted without subject matter jurisdiction, thisCourt does not have the discretion not to notice and correct the error; it must notice andcorrect the error.”

25 See, e.g., Torres v. Oakland Scavenger Co., 487 U.S. 312, 317 (1998).26 Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567 (2004), is an illustrative

example. A partnership sued a Mexican corporation in federal district court under diversityjurisdiction. At the very moment at which the complaint was filed, the parties were notdiverse, but soon afterwards they were. The defendant did not raise jurisdictionalchallenges. After three years of pretrial motions and discovery, followed by a six-day trial,the jury returned a verdict in favor of the partnership. Before entry of judgment, defendant


from sunk costs [to the judicial system] does not license courts to retainjurisdiction over cases in which one or both of the parties plainly lack acontinuing interest.”27

Acquiring jurisdiction is crucial, and the timing of raising the argumentagainst it is unimportant. “If the court determines at any time that it lackssubject-matter jurisdiction, the court must dismiss the action.”28 A litigant“may raise a court’s lack of subject-matter jurisdiction at any time in thesame civil action, even initially at the highest appellate instance.”29

Litigants are also free to invoke federal jurisdiction, and, upon losing, raisea jurisdictional defect.30 More generally, jurisdiction is independent of theparties’ will. The court cannot deny a jurisdictional challenge because alitigant intentionally and strategically chooses to raise it at a later point.31

Being such a fundamental requirement, lack of jurisdiction may evenjustify, in certain situations, a collateral attack after the original proceedingsare over.32 Finally, appellate courts are obliged to raise jurisdictional

filed a motion to dismiss for lack of subject-matter jurisdiction. The Supreme Court held, ina 5-4 decision per Justice Scalia, that the court lacked subject-matter jurisdiction, and thecase was dismissed. The quality of the result on the merits and the fact that thejurisdictional flaw cured after the case was filed did not matter. See also JACK J.FRIEDENTHAL, ARTHUR R. MILLER, JOHN E. SEXTON & HELEN HERSHKOFF, CIVIL

PROCEDURE—CASES AND MATERIALS 341 (Revised 9th ed. 2008); Gao, supra note 16, at2371 (“Regardless of the time and resources that the parties and the court have expended, afinding of lack of subject matter jurisdiction . . . requires a dismissal.”).

27 Friends of the Earth v. Laidlaw, 528 U.S. 167, 192 (2000).28 Fed. R. Civ. P. 12(h)(3).29 Kontrick v. Ryan, 540 U.S. 443, 455 (2004). See also GMAC Commercial Credit

LLC v. Dillard Dept. Stores, Inc., 357 F.3d 827, 828 (8th Cir. 2004) (“Any party or thecourt may, at any time, raise the issue of subject matter jurisdiction”); and Capron v. VanNoorden, 2 Cranch 126, 127 (1804). For a criticism of this long-standing rule, as well as aproposal for an alternative rule barring tardy jurisdictional challenges, see Gao, supra note16.

30 “There is admittedly something unsettling about a party bringing a case in a federalcourt, taking the case to final judgment, losing, and then invoking a jurisdictional defectthat it created—with the result that it escapes from the judgment and returns, albeit in adifferent venue, to relitigate the merits. But the federal courts are courts of limitedjurisdiction and their institutional interest in policing the margins of that jurisdiction is ofgreater concern than any perceived inequity that may exist here” (Am. Fiber & Finishing,Inc. v. Tyco Healthcare Group, LP, 362 F.3d 136, 143 (1st Cir. 2004)).

31 FRIEDENTHAL, MILLER, SEXTON AND HERSHKOFF, supra note 26, at 339. See alsoWight v. BankAmerica Corp, 219 F.3d 79, 90 (2d Cir. 2000): “irrespective of how theparties conduct their case, the courts have an independent obligation to ensure that federaljurisdiction is not extended beyond its proper limits”; United States v. Leon, 203 F.3d 162,164 n.2 (2d Cir. 2000); Gao, supra note 16, at 2390–92.

32 United States v. Kerley, 416 F.3d 176, 181 (2d Cir. 2005). FRIEDENTHAL, MILLER,SEXTON AND HERSHKOFF, supra note 26, at 261–344.


difficulties sua sponte, even absent any contention to the trial court’sjurisdiction.33

Though one may doubt their wisdom, these strict rules of subject-matterjurisdiction are well-entrenched in American legal tradition.34 Indeed, courtssometimes enforce these rigid rules while simultaneously lamenting theresulting inequitable and inefficient outcomes. In one extreme example, thedefendant raised a successful jurisdictional challenge only after a juryverdict in the plaintiff’s favor. The court of appeals vacated the judgment inthe following terms:

Despite our holding, we note the [defendant’s] failure to raise the motionearlier has resulted in delay, expense to appellees, and waste of judicialresources. Nonetheless, because ‘[s]overeign immunity . . . is a jurisdictionalprerequisite which may be asserted at any stage of the proceedings, ... [a]Court simply cannot ignore arguments, however belated, that call into doubtthe Court's authority to exercise jurisdiction over [a] matter.’35

33 Kontrick, 540 U.S. at 455.34 See, e.g., Steel Company v. Citizens for a Better Environment, 523 U.S. 83, 94–95

(1998); Kerley, 416 F.3d at 181.35 Hagen v. Sisseton-Wahpeton Community College, 205 F.3d 1040, 1044 (8th Cir.

2000) (citing Resolution Trust Corp. v. Miramon, 935 F.Supp. 838, 841 (E.D.La.1996)).In another illustrative decision, Diaz-Rodriguez v. Pep Boys Corp., 410 F.3d 56, 62

n.5 (1st Cir. 2005), the court of appeals had to nullify a summary judgment due to ajurisdictional defect which was not raised by the losing party at the trial:

There is something faintly inequitable about a party letting a case go to judgmentwithout questioning the court's jurisdiction, losing, and then profiting from ajurisdictional defect noted sua sponte by the appellate court. . . . [however],federal courts are courts of limited jurisdiction. Consequently, such courts must‘monitor their jurisdictional boundaries vigilantly.’ (citing Am. Fiber & Finishing,Inc. v. Tyco Healthcare Group, LP, 362 F.3d 136, 139 (1st Cir. 2004)).

Another example is Del Vecchio v. Conseco, Inc., 230 F.3d 974, 980 (7th Cir. 2000).The court of appeals had to null and void a summary judgment entered by the trial court.Doing so, the court admitted that:

While we are not unsympathetic to the waste of effort represented by a case thathas been fully litigated in the wrong court, both the Supreme Court and weourselves have noted time and again that subject matter jurisdiction is afundamental limitation on the power of a federal court to act. . . . Once it appears,as it has here, that subject matter jurisdiction is lacking, only one path lies open tous. We hereby VACATE the [trial court’s summary judgment].

See also Shaffer v. GTE North, Inc., 284 F.3d 500, 505 (3d Cir. 2002).


Put differently, “the federal courts’ institutional interest in policing themargins of [subject-matter] jurisdiction is of greater concern than anyperceived inequity that may exist.”36

Jurisdiction, therefore, is independent of the merits. Its boundariesshould be strictly enforced. Unless these declarations are empty rhetoric, acorrelation between reversals of subject-matter jurisdiction questions andjudicial efforts spent at the trial court on the merits can suggest that judgesare overly influenced by past judicial input. This is the hypothesis of thisresearch.

B. The Database

Given the hypothesis, this Article looks for an empirical correlationbetween reversals of jurisdiction questions and judicial efforts at the triallevel on the merits. Therefore, the data consist of appellate cases in whichthe trial court upheld its jurisdiction, proceeded to the merits (with orwithout a trial), and the jurisdiction dispute is challenged again at theappellate court. The dependent variable is the likelihood of reversing thetrial court’s jurisdiction.37 The independent variable indicates judicialefforts spent at the trial level on the merits.38

The Article relies on the procedural posture in which the original caseended as a proxy for previous judicial efforts. Specifically, the independentvariable indicates whether the district court decides the merits by a bench orjury trial; or before—through a motion to dismiss, summary judgment, etc.

The procedural posture in which the trial court disposed of the caseplausibly indicates judicial efforts on the merits. Generally, the later theprocedural stage the more the district judge invests in a case. In particular,jury and bench trials ordinarily implicate larger judicial resources thansummary judgments or motions to dismiss. Most important, a laterprocedural posture does not mean that the district judge made a correctjurisdiction determination. Jurisdiction questions are adjudicated at theoutset, and are not affected by a subsequent disposition of the merits. Thefact that the case proceeded to a bench/jury trial on the merits should not, in

36 Am. Fiber & Finishing, Inc. v. Tyco Healthcare Group, LP, 362 F.3d 136, 143 (1stCir. 2004).

37 The “dependent variable” is a variable that represents the phenomenon that thetheory attempts to explain. In this context, the dependent variable is whether or not theappellate court reverses the trial court’s jurisdiction. I expect to observe more reversalswhere more judicial efforts were spent on the merits.

38 “Independent variable” is a variable that explains changes in the dependent variable.In this context, the independent variable is the amount of judicial efforts at the trial level onthe merits, and I expect this variable to be correlated with fewer reversals.


itself, make the preliminary jurisdiction decision correct when the appellatecourt later reviews it.39

The database consists of courts of appeals decisions in which there is agenuine challenge to the trial court’s subject-matter jurisdiction. I collectedthe data through an online legal research database. In order to keep onlynon-frivolous jurisdictional challenges, the dataset includes appellate casesin which the exact phrase “subject-matter jurisdiction” appears in one of thefollowing: synopsis, digest, topic, notes and summary of the opinion.40 Ireviewed the cases manually to keep only the cases in which the appellatecourt indeed examines the trial court’s decision to retain jurisdiction. Theresulting database encompasses all decisions in six different circuit courts,of the last decade, in which a genuine challenge to the trial court’sjurisdiction arises—overall, 375 decisions.

III. RESULTS AND DISCUSSION41

A. The Variables and Descriptive Statistics

The dependent variable is JURISDICTION—whether the circuit courtaffirmed, reversed, or remanded the jurisdiction question. In the majority ofthe cases (62.9%), the court of appeals affirmed the trial court’sjurisdiction.42 Note that this variable solely describes how the appellate

39 In early versions of this research I experimented with two other variables for judicialefforts and tested the results on a small subsample. The first variable was the length (pages)of the decision/s rendered at the district court; the second was the time (months) duringwhich the case was pending at the trial court. The length of the trial court opinion hadvirtually no effect on reversal rates of jurisdiction questions. This might happen due tomeasurement distortions, as the court often issues several decisions, not all of themreported. The time during which the case was pending at the trial court had a mixedeffect—cases that ended within one year did have the highest reversal rate of jurisdictionquestions, as expected; but cases that ended in the second year had a lower reversal ratethan cases that ended after more than three years. This effect, though far from beingstatistically significant, may indicate that the time the case is pending is an unreliablemeasure for judicial efforts, as some cases are latently pending for a long time.

Be that as it may, the use of opinion-pages and months also entails conceptualdifficulties, as one cannot know whether these judicial efforts—indicated by the time thecase was pending and the length of the final decision—are truly independent of thejurisdiction decision. In contrast, judicial work during trial on the merits is by definitionirrelevant to the preliminary jurisdiction determination. For this reason I focused on theprocedural posture in which the case ended to indicate past judicial efforts on the merits.

40 Technically, the search command on Westlaw was: sy(“subject matter jurisdiction”)no(“subject matter jurisdiction”) di(“subject matter jurisdiction”) to(“subject matterjurisdiction”) su(“subject matter jurisdiction”).

41 For more detailed statistics see appendix.42 Cases in which the appellate court remanded the jurisdiction question comprise


court handled the jurisdiction question, as it might affirm jurisdiction butreverse the merits. Usually, however, the resolution of the jurisdictionquestion comports with the decision on the merits.43

The independent variable is the procedural posture in which the districtcourt, upon affirming jurisdiction, disposed of the case, and in particularwhether a complete jury or bench TRIAL was held. The majority of cases(84.6%) ended before a full trial (e.g., upon a summary judgment). I expectappellate judges to reverse jurisdiction more often where there was no trialon the merits at the district court.

The regression includes a host of control variables.44 These are the mostimportant ones:

INTERLOCUTORY APPEALS—the “final judgment rule” notwithstanding,there are some exceptions in which litigants can bring interlocutory appealsamidst a trial (e.g., preliminary injunctions). Most of the cases in the samplerepresent appeals from final orders (88.0%). Interlocutory appeals avoidprolonged litigation. Therefore, I expect appellate judges to reversejurisdiction more often in interlocutory appeals.

The regression also controls for the TYPE of the case. The majority ofthe cases in the database—53.6%—are civil cases. Other categories arepublic law (administrative and constitutional cases), civil rights, criminaland post criminal (e.g., habeas) cases.

For each case, there is information about the CIRCUIT that decides thecase and the DISTRICT from which the case originated. The databaseincludes cases from six different circuit courts of the last decade.45 In orderto account for doctrinal trends, the regression also controls for the YEAR inwhich the appellate court rendered the decision.

The database contains information regarding the district-circuitDISTANCE. As mentioned, judges might be reluctant to reverse their fellows

4.8% of the database. I conjectured that appellate judges’ tendency to affirm stems fromconcerns about rendering prior judicial efforts useless (supra Part I). Hence, remands arecloser to affirmations: the appellate court actually enables the trial court to correct itsmistakes and avoid a loss of judicial efforts by finding an alternative ground forjurisdiction. Hence, unless otherwise stated, remands are treated as affirmations. See alsoinfra notes 53–54 and accompanying discussion.

43 Only in 12.1% of the cases is the final disposition opposite to the jurisdictionalresolution.

44 Regression analysis is a common statistical technique for modeling and analyzingthe relationship between the dependent variable (here, the likelihood of reversingjurisdiction) and the independent variable (whether there was a trial), controlling for otherexplanatory variables.

45 The First, Second, Third, Seventh, Eighth, and the D.C. Circuit courts of appeals.These six circuits were chosen as they diverge on a number of characteristics such as:number of districts per circuit, average distance between the circuit and districtheadquarters, geographical location, and workload.


who invested considerable efforts in the case; the closer the judges, the lesslikely reversals are. In order to grasp—albeit roughly—the proximitybetween circuit and district judges, I recorded the distance between thecircuit and district headquarters. The farthest district is Puerto Rico, whichis part of the First Circuit, and located 1671 miles from Boston. The closestdistricts are those that are located at the circuit headquarters (e.g., theSouthern District of New York).

CLASS ACTIONS account for 7.2% of the database. Class litigation is aproxy for a more complicated case, which requires larger judicial resourcesat the trial court. Hence, I expect appellate judges to reverse jurisdiction lessfrequently in class actions.

B. Correlating Judicial Efforts with Reversal Rates

The results reveal the negative correlation between district judges’efforts on the merits and appellate courts’ tendency to reverse the trialcourt’s jurisdiction. Table 1 demonstrates this phenomenon. In cases thatended before a full trial, there is a 35.7% chance of reversing the trialcourt’s jurisdiction; in cases that ended after a jury or bench trial, thecorresponding figure is only 15.8%:

Table 1: Reversal Rates versus TrialDecisions

Without TrialDecisions After

TrialJurisdiction reversed 35.7% 15.8%Jurisdiction affirmed 64.3% 84.2%Total 100% 100%

A regression analysis that takes into account the control variables showsthat this effect of trials at the district court—which is associated with thedifference between a 35.7% and a 15.8% likelihood of reversal—is alsostatistically significant.46

Other noteworthy patterns emerge from the regression:Interlocutory appeals are correlated with more reversals of the district

court’s jurisdiction.47 This fits initial expectations, as interlocutory appealsinvolve less judicial efforts at the trial court.

46 “Significance” in statistics means that the odds that a certain result was created bychance are below a certain, low threshold (commonly, 1%, 5%, or 10%). Here, thecorrelation between trials and reversals of jurisdiction is statistically significant at the 5%level.

47 This effect, other things being equal, is statistically significant at the 10% level. It isalso substantial in magnitude. See appendix.


Class litigation is correlated with affirming the trial court’sjurisdiction,48 as expected. Complex litigation is more likely to involveheavy judicial investments at the district court on the merits, and thus thecourt of appeals is more likely to affirm the trial court’s jurisdiction.

The type of the case matters. In particular, jurisdiction questions incriminal cases stand out as the least likely to be reversed.49 This mightsuggest that questions of jurisdiction in criminal cases are less complicated,hence trial courts are less likely to err; this correlation might also suggestthat the observed phenomenon is driven by distinct motives. Criminal casesare visible. Public opinion, it seems, would find a reversal of criminalconviction for mere jurisdictional flaws particularly troublesome. Reversalsof criminal convictions are also bothering as they often implicate anadditional, substantial investment of resources by a grand jury. Therefore,the pattern observed in criminal cases might be motivated by the desire togain public confidence through a façade of consistency.50

The district-circuit distance is correlated with more reversals of the trialcourt’s jurisdiction, as expected. The further away the district court is, themore likely the appellate court is to reverse jurisdiction. This effect is,however, small in magnitude and statistically insignificant. In an unreportedregression on a subsample of cases with serious questions of jurisdiction,and after excluding districts with very few cases from the database, I founda strong and statistically significant correlation. This point should beclarified, then, by further research.

To sum up—the findings reveal a non-trivial and statistically significantcorrelation between having a trial at the district court and affirming thelower court’s jurisdiction. To simulate the magnitude of this phenomenonall else being equal, take the following hypothetical examples with andwithout a trial at the district court:

48 This effect, other things being equal, is statistically significant at the 10% level andalso substantial in magnitude.

49 Not only is this effect statistically significant at the 5% level, it is also very strong inmagnitude.

50 Compare the reversal rate of criminal to post-criminal cases (e.g., habeas)—in thelatter, where the defendant is usually the government, the court of appeals is by far morelikely to reverse the district court’s jurisdiction.


Table 2: Numerical Simulations51

Case Affirming JurisdictionGiven No Trial

Affirming JurisdictionGiven Trial

Civil case; 2d Cir. 79.5% 90.3%Civil case, 7th Cir. 65.8% 82.2%Criminal case; 8th Cir. 95.8% 98.2%Public law case; D.C. Cir. 75.6% 88.2%Human rights case; 1st Cir. 68.6% 84.0%

Though they are only conservative estimates,52 these figures show thenon-trivial effect—a trial can make a difference of almost up to 20percentage points. Many denied appeals should have been accepted.

C. Robustness Checks

I conducted several additional checks to buttress the findings.

1. Remands

In addition to affirm and reverse, the appellate court can remand thequestion of jurisdiction to the district court for reconsideration. Remandsallow the court of appeals to potentially save judicial resources fromvanishing. Up to this point, remands have been treated as affirmations. Butwhat happens when a closer look is taken?

When remands are excluded, the results are similar, though somestatistical significance is lost.53 However, when remands are compared toaffirmations, an opposite and more interesting picture appears. Other thingsbeing equal, appellate courts are much more likely to remand a jurisdictionquestion when there was a bench/jury trial at the district court,54 and thiseffect is statistically significant.55

51 In all these simulations, except the D.C. one, the defendant appeals and the distanceis the median distance. In the D.C. example the district and circuit courts are located at thesame place.

52 The simulations are based on the results of Regression (1). This is the mostconservative regression. All other regressions show a higher, and sometimes much higher,influence.

53 The correlation between having a trial at the district court and affirming jurisdictionbecomes significant at the 10% level, rather than the 5% level.

54 Cf. the proposition that courts should sustain jurisdiction when it actually exists butnot properly pled (Gao, supra note 16, at 2379).

55 At the 5% level.


The observed phenomenon, then, has dual influence. Not only do courtsof appeals prefer affirming jurisdiction to reversing it when the trial courtspent precious judicial resources; they also tend to use more remands inthese circumstances.

2. Federal Question Cases

Federal courts can obtain jurisdiction when the plaintiff alleges aviolation of the Constitution or of a federal statute. These are federalquestion cases. Alternatively, federal courts can acquire jurisdiction becausethe parties are "diverse" in citizenship, i.e., they are residents of differentstates or non-U.S. citizens. This is a diversity jurisdiction.

One can argue that this study should focus on federal questionjurisdiction, and exclude diversity cases. Determining diversity may requiresome factual inquiry.56 Furthermore, diversity is a fluid feature: it can be“created” and “destroyed,”57 sometimes by the litigants themselves.58 Thus,it makes sense to reiterate the regressions with only federal question cases.

When including only federal question cases, the results are all the morerobust. Given no trial at the district court, the odds of reversing the districtcourt’s jurisdiction are 36.1%; with a bench/jury trial, these odds are only13.3%. The results are statistically significant.59

3. Non-Similar Cases

Appeals might be unrepresentative of the universe of cases—litigantschoose to appeal, and this selection process might bias the results. Inparticular, litigants may appeal more aggressively after full trials. Toaccount for this, I ran several other regressions.

a. Excluding Frivolous Challenges to Jurisdiction

One might argue that the underlying jurisdiction questions are differentacross cases, as cases that ended in a full trial are more likely to be

56 See FRIEDENTHAL, MILLER, SEXTON & HERSHKOFF, supra note 26, at 259–60; Gao,supra note 16, at 2379.

57 FRIEDENTHAL, MILLER, SEXTON & HERSHKOFF, supra note 26, at 259–60. See Gao,supra note 16, at 2382, 2382–85 for actual examples.

58 FRIEDENTHAL, MILLER, SEXTON & HERSHKOFF, supra note 26, at 261–64; cf.,Caterpillar Inc. v. Lewis, 519 U.S. 61 (1996). What matters doctrinally, though, is the time-of-filing (see Gao, supra note 16, at 2380).

59 At the 5% level. The federal question sample includes 140 cases of the original 375cases—I included in the new sample only cases in which the phrase “federalquestion”/“federal subject-matter jurisdiction” appears.


appealed, and frivolous challenges to jurisdiction are more likely in thisgroup. The research already accounts—to some extent—for this concern, asthe database consists of decisions in which the phrase “subject-matterjurisdiction” appears only in the synopsis, digest, topic, notes, or summary.However, “notes” or “topic” may be very broad. To further mitigate theseconcerns, and exclude frivolous jurisdictional challenges, I ran theregressions on a subsample of cases in which the phrase “subject-matterjurisdiction” appears only in the summary or the synopsis of the decision.60

The results are telling. While the reversal rate of jurisdiction questionsfor non-trial decisions is 39.1%, a trial decreases this figure to 7.7%. Notonly is this effect large in magnitude, it is also highly statisticallysignificant.61 This suggests that, if anything, the selection process mitigatesthe observed phenomenon.62 Focusing on serious, genuine, questions ofjurisdiction, the observed phenomenon is much stronger.

b. Controlling for the Merits

Cases in the database vary in the strength of their substantive merits. Toaccount for this problem, two additional regressions were conducted.

First, summary order cases were excluded. A summary order is adecision without reasoning and precedential value.63 Hence, these cases aremore likely to represent unmeritorious appeals. When summary orders areexcluded, the results are, again, very similar.64

Second, the monetary value of a case can indicate its importance.Unfortunately, the monetary value is usually not apparent from the appellatecourt decision. In a small subsample, though, the decision indicates themonetary value. Within this sample, monetary value has a meager andinsignificant effect on reversal rates of jurisdiction questions, while theeffect of a trial at the district court remains similar.65 This suggests that the

60 139 cases overall.61 At the 1% level.62 Because weaker, non-trial cases are more likely to raise frivolous challenges to

jurisdiction.63 See, e.g., Anne Coyle, Note, A Modest Reform: The New Rule 32.1 Permitting

Citation to Unpublished Opinions in the Federal Courts of Appeals, 72 FORDHAM L. REV.2471, 2491 (2004). These decisions are often given orally, from the bench. Id., id.

64 Given no trial, there is a 36.8% probability of reversing jurisdiction; with a trial, theodds are much smaller—15.4%. This effect is statistically significant at the 5% level.

65 As an unreported regression shows. The sample is too small (79 cases) to generatestatistically significant results, but the findings are illustrative. Monetary value andaffirmations of jurisdiction are negatively correlated. This suggests that, if at all,jurisdiction determinations in more important cases are more likely to be reversed, otherthings being equal.


observed phenomenon is not affected by the importance of the underlyinglower court decision.

To sum up: these checks lend further support for the proposition thatappellate judges are reluctant to reverse jurisdiction the more effort the trialjudge invested on the merits of the case. This effect increases the odds ofboth affirming and remanding jurisdiction; and the results are even morerobust when a smaller sample of federal question cases is considered. Theexclusion of frivolous and non-meritorious jurisdictional challenges andappeals enhances the observed phenomenon, and the effect remains whenincluding the monetary value of the trial court’s decision.

IV. NORMATIVE IMPLICATIONS

The results indicate that appellate judges are influenced by seeminglyirrelevant efforts spent by trial judges. In light of this phenomenon, existingrules of procedure need to be modified.

One direction for reform is related to standards of review. If appellatejudges are less likely to reverse where trial judges made considerableefforts, a more aggressive standard of review of previous decisions shouldcompensate for the tendency to stick to a prior course of action. Moreover,the standard of review should be tailored to the efforts previously invested.In the context of appellate decision-making this logic leads to a moresearching review of final judgments (as opposed to interlocutory appeals);and questions that are decided at the beginning of litigation and arefollowed by considerable judicial efforts on other issues (typically legalquestions, as opposed to factual questions66).

The same logic applies to other contexts in which one judge evaluatesprior decisions made by another decision-maker. Given their tendency notto deviate from a prior course of action, then, courts might benefit from amore demanding review of administrative and arbitration judgments, and agreater attention to habeas corpus and new trial petitions.

To the extent that the empirical findings can be further generalized, andindividual judges are not likely to deviate from their own prior decisions,67

the findings strengthen the argument for bifurcating decision-making. Inseveral areas of law there is an ongoing debate whether or not to splitdecision-making between two different judges. One notable example is

66 Interestingly, this distinction fits current doctrine. Questions of law are reviewedunder a broad de novo review (see, e.g., 9C FED. PRAC. & PROC. CIV. § 2588 (3d ed.2013)); questions of fact are reviewed under a narrow “clearly erroneous” standard (Fed. R.Civ. P. 52(a)).

67 Cf., supra notes 6–10 and accompanying text.


remanding a case to the same trial judge for further proceedings;68 anotheris the ability of class-action judges who were heavily involved in settlementnegotiations to assess, impartially, the fairness of a settlement.69 Asbifurcated decision-making can reduce—though not eliminate—theattachment to a prior course of action,70 the findings suggest that a greaterpropensity to bifurcate improves decision-making in these areas.

These directions notwithstanding, the major procedural reform that thisArticle proposes is a broader right to interlocutory appeals. As will bedemonstrated below, interlocutory appeals are an effective tool to improveappellate decision-making.

A. The Final Judgment Rule

If appellate judges are affected by the trial court’s efforts, even wherethese efforts are irrelevant, one should attempt to insulate appellate judgesfrom data concerning the trial court's decision.71 This “veil of ignorance” isnot a practical solution. Instead, one should aim at avoiding the verysituations in which appellate judges review interim decisions after the casehas already been decided on the merits. The implications are clear—abroader right to interlocutory appeals should bring to more accurateappellate decision-making.

Legal systems have different views on interlocutory appeals. Somestates—most notably, New York72—are known for their broad right tointerlocutory appeals. The federal system, however, is notorious for its strictadherence to the “final judgment rule”:73 appeals are allowed only from

68 The current test for reassigning to a different judge upon remand is very narrow.Absent “unusual circumstances,” courts of appeals tend not to reassign a case to a differentjudge. See, e.g., U.S. v. Sears, Roebuck & Co., Inc., 785 F.2d 777, 780 (9th Cir. 1986);RICHARD E. FLAMM, JUDICIAL DISQUALIFICATION 1002 (2d ed. 2007).

69 See William B. Rubenstein, A Transactional Model of Adjudication, 89 GEO. L. J.371, 426–27 (2001); cf. Judith Resnik, Managerial Judging, 96 HARV. L. REV. 374, 424–31 (1982). By and large, judges cannot be disqualified for structuring settlements. SeeFLAMM, supra note 68, at 335–41.

70 See supra note 10.71 Cf., Adrian Vermueule, Veil of Ignorance Rules in Constitutional Law, 111 YALE. L.

J. 399 (2001) (praising some sort of ignorance in decision-making).72 See N.Y. Civ. Prac. L. & R. 5701 (a)(2). Other notable states that share a similar

procedural policy include Wisconsin, Arizona, California, and New Jersey. See JACK H.FRIEDENTHAL, MARY KAY KANE, ARTHUR R. MILLER, CIVIL PROCEDURE 620(18), 621(22)(4th ed. 2005).

73 “Without doubt, the federal courts are among the most strict in adhering to thefinality requirement.” FRIEDENTHAL, KANE & MILLER, supra note 72, at 622.


“final decisions of the district courts of the United States.”74 What are thepolicy considerations behind the federal final judgment rule?

Emanating from early English tradition,75 the final judgment rule hasobvious policy advantages. “The basic rationale of the finality rule isconservation of judicial resources.”76 It enables a speedy and smooth trial;77

reduces the number of appeals in each case;78 allows the appellate court amore comprehensive review of the merits;79 avoids tactical delays andharassment through frequent petitions for review;80 and allegedly betterrespects the authority of the trial judge.81

The literature has also noted the parallel counter-arguments.Interlocutory appeals can avoid costly and redundant proceedings;82 correctsituations in which final judgments have no practical importance;83 andproduce essential guidance to lower courts where interim orders are notlikely to be reviewed within final appeals (e.g., discovery rules).84

Every legal system strikes a balance between these competingconsiderations, on a continuum between a complete final judgment rule anda full right of interlocutory review. “The difference between the two

74 28 U.S.C. § 1291. A final judgment is a decision that “ends the litigation on themerits and leaves nothing for the court to do but execute the judgment” (Catlin v. UnitedStates, 324 U.S. 229, 233 (1945)).

75 See John C. Nagel, Note, Replacing the Crazy Quilt of Interlocutory AppealsJurisprudence with Discretionary Review, 244 DUKE L. J. 200, 202 (1994); Robert J.Martineau, Defining Finality and Appealability by Court Rule: Right Problem, WrongSolution, 54 U. PITT. L. REV. 717, 727 (1993).

76 Note, Appealability in the Federal Courts, 75 HARV. L. REV. 351, 351 (1961); seealso Michael E. Solimine & Christine Oliver Hines, Deciding to Decide: Class ActionCertification and Interlocutory Review by the United States Courts of Appeals Under Rule23(f), 41 WM. & MARY L. REV 1531, 1547–48 (2000).

77 “This insistence on finality and prohibition of piecemeal review discourage unduelitigiousness and leaden-footed administration of justice.” DiBella v. United States, 369U.S. 121, 124 (1962). See also Note, supra note 76, at 351.

78 Both because potential interim appeals will eventually be consolidated into a single,final one; and since parties might settle amidst trial, or otherwise forgo their right to appeal.See Note, supra note 76, at 352; Nagel, supra note 75, at 203.

79 Note, supra note 76, at 352.80 Id., at 351; Nagel, supra note 75, at 203; Edward H. Cooper, Timing as Jurisdiction:

Federal Civil Appeals in Context, 47 LAW CONTEMP. PROBL. 157, 157 (1984); Solimine &Hines, supra note 76, at 1547–48.

81 Note, supra note 76, at 352; Nagel, supra note 75, at 203.82 Note, supra note 76, at 352; Cooper, supra note 80, at 158.83 Note, supra note 76, at 352; Nagel, supra note 75, at 203; Cooper, supra note 80, at

157.84 “Loss of the need for review . . . may carry a cost that goes beyond the demands of

the particular case, as appellate courts may be deprived of the opportunity to clarify andimprove the law on matters that repeatedly evade review” (Cooper, supra note 80, at 157).See also Note, supra note 76, at 352.


approaches to appealability . . . is not as much philosophical as it is adifference in the method in which a particular jurisdiction has decided tobalance [the conflicting interests].”85 Even the apparently strict federal finaljudgment rule is not intact, as “the courts and Congress have created apatchwork of exceptions to it.”86 “The final judgment requirement has beensupplemented by a list of elaborations, expansions, evasions, and outrightexceptions that is dazzling in its complexity.”87 Indeed, much ink has beenspilled in an attempt to decipher and/or suggest the exact boundaries of thefederal final judgment rule.88

This large body of literature neglects one important issue—how thefinal judgment rule affects appellate judges’ decision-making. This Articlefills this gap. As it shows, the final judgment rule, which accumulatesjudicial resources at the trial court, is correlated with fewer reversals. Hadinterlocutory appeals been available, some meritorious appeals, currentlyunsuccessful, would have been accepted. This phenomenon, then, tilts thecurrent balance between the final judgment rule and interlocutory appeals inthe latter direction.

More specifically, this logic can highlight certain enclaves where therisk of inaccurate appellate decision-making is greater, and thus

85 FRIEDENTHAL, KANE & MILLER, supra note 72, at 621–22. See also Nagel, supranote 75, at 203–04 (“The battle between these competing concerns explains why theSupreme Court . . . for many years failed to apply the final judgment rule rigidly,eschewing a clear definition of ‘final judgment’”).

86 Nagel, supra note 75, at 220. Notable areas in which there is available interlocutoryreview are: concluding orders in cases of multiple parties (Fed. R. Civ. P. 54(b));injunctions (28 U.S.C.A. § 1292(a)(1)); notice requirement in class actions (Eisen v.Carlisle & Jacquelin, 417 U.S. 156 (1974)); posting of security for costs (Cohen v.Beneficial Industrial Loan Corporation, 337 U.S. 541 (1949)); appointment ofreceiverships (28 U.S.C.A. § 1292(a)(2)).

87 Cooper, supra note 80, at 157. See also Note, supra note 76, at 352, 357.88 See, e.g., Nagel, supra note 75 (suggesting to move toward a discretionary appeal

system); Martineau, supra note 75 (same); Leah Epstein, Comment, A Balanced Approachto Mandamus Review of Attorney Disqualification Orders, 72 U. CHI. L. REV. 667 (2005)(discussing interlocutory appeals from attorney disqualification decisions); Michael E.Solimine, Revitalizing Interlocutory Appeals in the Federal Courts, 58 GEO. WASH. L.REV. 1165 (1990) (advocating “less judicial hostility toward interlocutory appeals”, id. at1168); Andrew S. Pollis, The Need for Non-Discretionary Interlocutory Appellate Reviewin Multidistrict Litigation, 79 FORDHAM L. REV. 1643 (2011) (arguing for interlocutoryreview in multidistrict litigation); Nathan A. Forrester, Comment, Mandamus as a Remedyfor the Denial of Jury Trial, 58 U. CHI. L. REV. 769 (1991) (discussing interlocutoryappeals from decisions to deny a jury trial); Gayle Gershon, Note, A Return to Practicality:Reforming the Fourth Cox Exception to the Final Judgment Rule Governing SupremeCourt Certiorari Review of State Court Judgments, 73 FORDHAM L. REV. 789 (2004)(discussing interlocutory review by the Supreme Court from constitutional judgmentsdecided in state courts); Niehaus v. Greyhound Lines, Inc., 173 F.3d 1207, 1210–11 (9thCir. 1999) (expanding interlocutory review of decisions to remand cases to state courts).


interlocutory appeals are more desirable. This class of cases includes lowercourt decisions that, if wrong, would entail a huge waste of judicialresources.89 One obvious candidate is lower courts’ decisions to upholdtheir subject-matter jurisdiction. This logic is also pertinent to othercontexts. In fact, every denial of preliminary challenge that can serve as aground for dismissal fits this pattern. Notable examples are: personaljurisdiction, affirmative defenses (e.g., statute of limitations, res-judicata),other prudential restrictions on jurisdiction (e.g., forum non conveniens),and recusal applications.

As the relevant factor is the amount of judicial effort spent in case theinterim decision is mistaken, rights to interlocutory appeals shouldsometimes be asymmetric. The following subsections demonstrate.

1. Interlocutory Review from Class Certification Decisions90

The case for interlocutory review of decisions to certify (or refuse tocertify) class actions is illuminating. Certification decisions should be madeat the beginning of litigation.91 Certification is crucial as the stakes are oftentoo small to justify individual litigation. A false-negative, i.e., an erroneousorder denying class certification, serves therefore as “the ‘death knell’ of thelitigation.”92 Similarly, false-positives are “inverse-death-knell,” because “if[the certification] order were erroneous and therefore reversed on appeal,the action would for all practical purposes be at an end.”93 Based on thesedoctrines,94 several courts of appeals decided that certification orders are“final judgments,” allowing interlocutory appeals accordingly.95 The

89 Cf. Cooper, supra note 80, at 162 (“The substantive impact of possible error mayseem so clear as to warrant a routine right of interlocutory appeal.”); Pollis, supra note 88(interlocutory review in multidistrict litigation is important as a single “error can have . . .sweeping impact on thousands of cases.”).

90 Class actions are not automatically available, as the court has to certify a lawsuit as aclass action. Hence, after filing a complaint the plaintiff should move to have the classcertified.

91 “At an early practicable time after a person sues or is sued as a class representative.”Fed. R. Civ. P. 23(c)(1).

92 Solimine & Hines, supra note 76, at 1553.93 Kohn v. Royall, Koegel & Wells, 496 F.2d 1094, 1098 (2d Cir. 1974);

FRIEDENTHAL, KANE & MILLER, supra note 72, at 625. Furthermore, erroneous grants ofclass certifications “may force a defendant to settle rather than incur the costs of defendinga class action and run the risk of potentially ruinous liability.” Fed. R. Civ. P. 23(f),advisory committee’s note to 1998 amendment.

94 The death knell doctrine is defined as “[a] rule allowing an interlocutory appeal ifprecluding an appeal until final judgment would moot the issue on appeal and irreparablyinjure the appellant's rights.” BLACK’S LAW DICTIONARY (9th ed. 2009).

95 FRIEDENTHAL, KANE & MILLER, supra note 72, at 625.


Supreme Court, however, rejected this view.96 Congress responded,authorizing the advisory committee to reconsider this subject. The adoptionof Federal Rule of Civil Procedure 23(f) followed in 1998. The Rule allowsa broader right to interlocutory appeals from certification decisions. It gives“[t]he court of appeals . . . unfettered discretion whether to permit theappeal, akin to the discretion exercised by the Supreme Court in acting on apetition for certiorari.”97 Providing this wide discretion, Rule 23(f) guidescourts of appeals to “develop standards for granting review.”98 Courts andacademics alike have been struggling to develop these standards.99 ThisArticle adds a new perspective to this endeavor.

To be sure, the desire to allow a broader right to interlocutory appealsfrom class certification orders was not driven by the fear of erroneousappellate decision-making; rather, it endorses the so-called death-knellrationales.100 Nevertheless, the logic of this Article can be helpful to clarifythe appropriate standards for granting interlocutory review from classcertification orders.

The Advisory Committee is agnostic between grants and refusals ofclass certification,101 but the findings of this study are not. A decision

96 Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978).97 Advisory committee’s note to 1998 amendment, supra note 93.98 Advisory committee’s note to 1998 amendment, supra note 93.99 See, e.g., Blair v. Equifax Check Services, Inc. 181 F.3d 832 (7th Cir. 1999)

(considering several factors including: whether a denial of certification is likely to endlitigation; to what extent the defendant is pressed to settle; the legal importance); Solimine& Hines, supra note 76, at 1577 (advocating several relevant factors, such as “the presenceof a death knell or a reverse death knell; the likelihood of reversal; the presence ofintraclass conflicts; and the existence of simultaneous, related litigation in other courts”);Carey M. Erhard, A Discussion of the Interlocutory Review of Class Certification Ordersunder Federal Rule of Civil Procedure 23(f), 51 DRAKE L. REV. 151 (2002) (summarizingcase law and recommending more uniformity across circuits); Charles R. Flores, AppealingClass Action Certification Decisions Under Federal Rule of Civil Procedure 23(f), 4SETON HALL CIRCUIT REV. 27 (2007) (surveying case law and urging appellate courts tobetter explain their reasons to grant or deny interlocutory appeals); Aimee G. Mackay,Comment, Appealability of Class Certification Orders under Federal Rule of CivilProcedure 23(f): Toward a Principled Approach, 96 NW. U. L. REV. 755, 809 (2002)(stressing that “courts should accept review in cases involving important questions [suchas] certification orders that present truly novel issues . . .”); Christopher A. Kitchen, Note,Interlocutory Appeal of Class Action Certification Decisions Under Federal Rule of CivilProcedure 23(f): A Proposal for a New Guideline, 2004 COLUM. BUS. L. REV. 231 (2004)(suggesting that “courts of appeals should . . . allow[] for appeal when . . . the districtcourt’s decision is ‘likely erroneous.’” Id., at 233).

100 This is clear from the advisory committee’s note to the 1998 amendment, supranote 93: “Permission is most likely to be granted when . . . [a]s a practical matter, thedecision on certification is likely dispositive of the litigation.”

101 “An order denying certification may confront the plaintiff with a situation in whichthe only sure path to appellate review is by proceeding to final judgment on the merits of


refusing to certify a class is, de-facto, equal to terminating the case, withonly little additional investment of judicial efforts; however, an ordergranting class certification is more likely to yield costly adjudication andhence represents a more appropriate case for interlocutory review. In otherwords, the court of appeals is more likely to deny meritorious challenges toclass certification orders where certification was granted (and then followedby costly proceedings). In this sense, the inverse-death-knell theory is astronger argument than the death-knell theory.102 Therefore, and subject tothe idiosyncrasies of each case, this study advocates an asymmetric right tointerlocutory appeals from class certification orders.

2. Asymmetric Interlocutory Appeals—Arbitration Proceedings

While the drafters of Rule 23(f) did not craft an asymmetric right tointerlocutory review, asymmetric interlocutory appeals do exist in theFederal Arbitration Act. Section 16(a) provides that an appeal may be takenfrom an order denying a petition to compel arbitration.103 However, in themirror-image case—an order compelling arbitration—there is no similarright to interlocutory review.104

This asymmetric interlocutory appeal does not seem to be driven by thedesire to improve appellate decision-making;105 rather, it appears as a partof a broad pro-arbitration policy.106 Whether the drafters had in mindappellate decision-making or not, Section 16 embraces the logic of thisArticle. Where a trial court’s erroneous order is likely to trigger redundantproceedings in federal courts—and hence a greater risk of biased appellate

an individual claim that, standing alone, is far smaller than the costs of litigation. An ordergranting certification, on the other hand, may force a defendant to settle rather than incurthe costs of defending a class action and run the risk of potentially ruinous liability”(advisory committee’s note to 1998 amendment, supra note 93).

102 Interestingly, and contrary to this logic, courts of appeals used to be less receptiveto the inverse-death-knell theory. FRIEDENTHAL, KANE & MILLER, supra note 72, at 625.

103 9 U.S.C. § 16(a).104 9 U.S.C. § 16(b).105 The story of § 16 resembles Rule 23(f). At first, courts of appeals found exceptions

to the final judgment rule, allowing interlocutory appeals from orders compelling/refusingto compel arbitration. Then the Supreme Court stepped in, preventing interlocutoryappeals. Finally, Congress responded by enacting § 16. See, e.g., Mahlon M. Frankhauser,Arbitration: The Alterative to Securities and Employment Litigation, 50 BUS. LAW. 1333,1342–45 (1995).

106 See Bombardier Corp. v. National R.R. Passenger Corp., 333 F.3d 250 (2003); cf.,Stephen H. Kupperman & George C. Freeman III, Securities Arbitration: Rule 15c2-2,Fraud Duress, Unconscionability, Waiver, Class Arbitration, Punitive Damages, Rights ofReview, and Attorneys Fees and Costs, 65 TUL. L. REV. 1547, 1605 (1991), who advocate,based on the same pro-arbitration policy, an asymmetric standard of review of trial court’sdecisions to affirm/vacate arbitration award.


decision-making—interlocutory appeals are more valuable. When the trialcourt’s mistake does not entail additional federal proceedings, there is lessrisk of error in appellate decision-making, and interlocutory appeals are notas important. Hence, from the perspective of this Article, the case forinterlocutory appeals from orders denying arbitration is stronger.

This approach can be extended to other areas in which courts struggle todelineate the optimal scope of interlocutory appeals.107

* * *

To sum up: Contrary to the final judgment tradition, this Articleadvocates a broader right to interlocutory review. This mechanism isparticularly useful for interim decisions that are followed by costlyadjudication. Rights to interlocutory review should sometimes beasymmetric, as mistaken interlocutory decisions often entail differentinvestments of judicial efforts, depending on the winning party.

Interlocutory review does not have to be complete. Speedy, unreasonedappellate orders can avoid many of the difficulties that this Articledescribes. Nevertheless, it is true that even a moderately broader right tointerlocutory review entails more costs. The appropriate balance betweenthe costs and benefits of interlocutory appeals merits a separate discussion.The purpose of this Article is to add a new argument in favor ofinterlocutory appeals—improving appellate decision-making—to theregular array of for-and-against considerations. The findings show thatlarger efforts by the trial court are associated with a non-trivial distortion inappellate decision-making as reversal rates are around 5-20 percentagepoints lower, in conservative estimates. With a broader interlocutoryreview, then, many appeals that are currently denied would have beenaccepted.108

107 One notable example is the Class Action Fairness Act of 2005, which makesremand orders reviewable: “a court of appeals may accept an appeal from an order of adistrict court granting or denying a motion to remand a class action to the State court fromwhich it was removed” (28 U.S.C. § 1453(c)(1) (italics added)). An asymmetric right toreview—making only orders denying remand reviewable—may be more important fromthe perspective of this Article.

108 For the utility of more accurate decision-making see Louis Kaplow, The Value ofAccuracy in Adjudication: An Economic Analysis, 23 J. LEGAL. STUD. 307 (1994).


V. ALTERNATIVE READINGS OF THE FINDINGS

A. Alternative Concepts of Jurisdiction

The empirical findings are based on the sharp distinction betweenjurisdiction and merits adjudication. This section revisits the thesis of thisArticle in case the concept of jurisdiction is not as rigid as the rhetoric ofjudges implies. The argument can take two forms—first, appellate judgessay jurisdiction but mean something else in order to achieve a betteroutcome in each case; second, the broader concept of jurisdiction may be alie, designed to achieve policy gains. This section discusses these issues.

1. Appellate Judges Misuse Jurisdiction

There are circumstances in which appellate court decisions that find lackof jurisdiction trigger new proceedings in another forum (e.g., state courts).This consideration might justify affirming jurisdiction where it does notexist and the result on the merits seems correct, in order to save prospectivejudicial resources at the other forum.109 Indeed, litigants sometimesexplicitly raise this kind of argument.110

Do courts of appeals consider prospective judicial resources? Accordingto judicial rhetoric, the answer is clearly negative.111 Moreover, the desire tosave future judicial efforts by affirming questionable jurisdiction cannotapply straightforwardly across cases. There are several distinct, hypotheticalscenarios when jurisdiction is found lacking at the appellate court.112 Thealternative forum can be, for instance, a state court or a foreign system; andit may seem more acceptable to burden a foreign legal system with futurelitigation.113 Furthermore, the alternative forum might not be available forlitigation—a statute of limitation, for example, often precludes litigation inthe alternative forum regardless of jurisdiction.114

109 Cf., Justice Ginsburg’s dissenting opinion in Grupo Dataflux v. Atlas Global Group,L.P., 541 U.S. 567, 594–95 (2004): “rigid insistence on the time-of-filing [diversityjurisdiction] rule . . . would mean an almost certain replay of the case, with, in alllikelihood, the same ultimate outcome”; Caterpillar Inc. v. Lewis, 519 U.S. 61 (1996).

110 One example in the database is Smith v. American General Life and Acc. Ins. Co.,337 F.3d 888 (7th Cir. 2003). The court rejected this claim (id., at 897).

111 See, e.g., id., id. (“While we are not unsympathetic to [the appellant’s] situation . . .We are simply not in a position to create federal jurisdiction where it is otherwiselacking”).

112 See Gao, supra note 16, at 2388–90 for a summary of the possible alternativescenarios upon dismissal for lack of jurisdiction.

113 Similarly, it seems more acceptable to burden state courts, as opposed to federalcourts, with the burden of relitigation. Cf., Gao, supra note 16, at 2389.

114 Practically, this is a very real concern: “In many situations, especially where the


If appellate judges are interested in saving prospective judicialresources, these considerations should be taken into account. However,courts do not seem to undertake this approach—typically, they do not evenhave complete information regarding the alternative forum and itsavailability. In case such interests do guide courts, appellate judges shouldtransparently discuss these considerations, letting litigants raise relevantarguments.

Moreover, to the extent appellate judges misuse the concept ofjurisdiction to save prospective judicial expenses in specific cases, thispractice has obvious costs. It tends to expand jurisdiction, in order to savejudicial efforts that were mistakenly spent. It spawns uncertainty in an areaof law that loathes it.115 It seems to confuse litigants, as evidenced by thelower reversal rates of jurisdiction determinations that were followed by atrial.116 In short, this judicial behavior may achieve just results in specificcases, but it pays a long-term, doctrinal price. As the Supreme Courtemphatically cautions, “incremental benefit is outweighed by the impact of .. . an individualized jurisdictional inquiry on the judicial system’s overallcapacity to administer justice.”117

2. Jurisdiction’s Noble Lie

Appellate courts, then, may misuse jurisdiction doctrines to achievebetter outcomes in specific cases. More broadly, the entire concept ofjurisdiction may be a lie. Frederic Bloom argues that jurisdiction is a“noble” lie.118 This lie does not aim to deceive; rather, it is “devised . . . tosecure a set of . . . benefits.”119 Drawing on several Supreme Courtprecedents, Bloom avers that flexible jurisdiction rules allow judicialpragmatism;120 enable courts to encourage/discourage substantive rights;121

litigation has gone on for years, [the assumption that the statute of limitations on theplaintiff’s case has not run] is likely a faulty one.” Gao, supra note 16, at 2388(119).

115 “An important feature of laws regarding form is that they be cheaply accessible andprecisely predictable.” Louis Kaplow, Rules versus Standards: An Economic Approach, 42DUKE L. J. 557. 618 (1992).

116 Cf., Kevin M. Clermont and Theodore Eisenberg, Appeal from Jury or Judge Trial:Defendants’ Advantage, 3 AM. L. ECON. REV. 125, 131–34 (2001) (attempting to explainwhy litigants appeal although few cases are reversed).

117 Coopers & Lybrand v. Livesay, 437 U.S. 463, 473 (1978).118 Frederic M. Bloom, Jurisdiction’s Noble Lie, 61 STAN. L. REV. 971 (2009).119 Id., at 974.120 Pliable jurisdiction expresses the “careful incorporation of more functional

concerns” (id., at 1009). These concerns include relative expertise of different forums andimpact on judicial workload (id.).

121 Id., at 1010. Hence jurisdiction rules shrink and grow (id.).


and maintain a proper balance of federalism.122 Furthermore, Bloom argues,the rigid rhetoric is essential. It keeps some degree of formality, guideslower courts and creates well-defined categories.123 Though no one is“fooled,” the strict language counsels caution and respects tradition.124

In sum, the split between rhetoric and practice, the argument goes,enables the Court to “adapt wisely over time” on the one hand,125 and guidelower courts on the other hand. This is the “noble” lie, deceiving no-one andpersisting over time.126

The empirical findings may suggest that appellate judges misusejurisdiction doctrines. However, the findings do not indicate a noble lie.There is nothing noble in the database. It consists of mundane cases inwhich appellate judges say one thing and do another. None of these casesproduced a new Supreme Court jurisdiction precedent. What the data doshow is erratic application of jurisdiction doctrines, subject, perhaps, to theirreparable waste of judicial efforts and the need to relitigate the case. Thelie that this Article reveals is an ex-post lie, which stems from the desire toaccommodate salient, aberrant features of specific cases; it has nothing todo with a better design of jurisdiction rules, allegedly sensitive tofederalism concerns and the exigencies of the time.

* * *

Jurisdiction might be a lie, but, at least at the appellate level, it is not anoble one. And even if appellate judges say jurisdiction but meansomething else, and this phenomenon drives the results, the main policyrecommendation of this Article—interlocutory appeals—remains valuable.Interim review would avoid the need to bend doctrine where the results onthe merits seem reasonable. It would also avoid haphazard expansion ofjurisdiction. Interlocutory appeals can thus lead to greater doctrinal clarityand certainty.

Are the additional costs of interlocutory review worth the benefits ofpredictable rules of jurisdiction and more accurate results? Is the balancebetween potentially efficient results in individual cases and better rulesoptimal? These questions exceed the scope of this Article and are left tofuture research. This Article, however, does provide a more comprehensive

122 Allowing states to “craft (part of) their own identities within a broader union” (id.,at 1017).

123 Id., at 1022–23.124 Lower courts and parties understand that there needs to be “careful justification of

any jurisdictional deviation” (id., at 1024).125 Id., at 1025.126 Id., at 975.


view of the costs and benefits of the jurisdiction lie at the appellate level.

B. Other Concerns

One may argue that other forces drive the observed results. In thefollowing paragraphs I discuss three alternative explanations: sampleselection, litigants’ behavior, and trial judges’ behavior.

1. Sample Selection

This study looks at appellate court cases. Litigants are those who haveto trigger appeals. If appealed cases systematically differ from cases that arenot appealed, the results we observe might be biased. Are cases that endedwith a trial on the merits more/less likely to be appealed? It seems intuitivethat heavily invested cases are the hardest ones, and also more likely toreach appellate review.127 However, this does not mean that the underlyingjurisdiction resolutions, which are typically decided at the outset, aredifferent. The underlying jurisdiction issues are detached from the merits ofthe case and assumed to be independent of the main dispute. There can be ahard case on the merits with an easy underlying jurisdiction question; andvice versa: a difficult jurisdiction dispute with easily resolved merits.

Other factors mitigate the effect, if any, of sample selection. First, theregressions control for several variables that plausibly influence thedecision to appeal (examples include the type of the case, the appellant’sidentity, and whether interlocutory review was granted). Similarly, I ranadditional regressions to control for the strength of the merits.128 Second,the database includes only genuine jurisdictional challenges—I excludedcases with frivolous jurisdiction arguments.129 Thus, even if litigantsexcessively appeal jurisdiction resolutions following a trial on the merits,the database contains only the non-frivolous ones. Likewise, I ran additionalregressions to better rule out non-meritorious jurisdictional claims, and theresults were all the more robust.130

These arguments suggest that it is not the selection process that drivesthe results. Indeed, previous studies that looked at appellate decision-making concluded that “any selection of cases for appeal seems overall to

127 Cf., George L. Priest & Benjamin Klein, The Selection of Disputes for Litigation,13 J. LEGAL STUD. 1 (1984); Joel Waldfogel, The Selection Hypothesis and theRelationship Between Trial and Plaintiff Victory, 103 J. OF POLIT. ECON. 229 (1995). Inaddition, litigants may tend to excessively appeal cases in which they invested largeresources.

128 See supra Part III.C.3.b.129 See the text accompanying supra note 40.130 See supra Part III.C.3.a.


reflect little or no systematic filtering on the basis of case strength.”131

2. Litigants’ Behavior

In a similar vein, litigants’ behavior may affect the different reversalrates of jurisdiction questions. Particularly, litigants have various ways toadjust to the phenomenon that this Article finds. Litigants might, forexample, adapt by appealing fewer jurisdiction questions that were followedby a considerable judicial input on the merits, as they intuit that appellatecourts tend to affirm. Likewise, litigants whose jurisdictional challenge wasdenied might, to some extent, control the subsequent investment of judicialresources. Litigants, for instance, can push for interlocutory appeals (thoughthey are generally not available);132 when these attempts are unsuccessful,litigants may find creative ways to avoid a long—and presumablyjurisdiction-lacking—trial.133 Alternatively, litigants can agree, ex-ante, to apartial settlement, gaining immediate review of the most disputed issue.134

These caveats seem intuitively appealing. On the other hand, by nomeans is it self-evident to attribute perfect information to litigants.135 Bethat as it may, there is a reason to think that the foregoing strategies cannotexplain the observed results. To the extent litigants do effectively appeal toa lesser extent when a jurisdiction question was followed by a trial on the

131 Clermont and Eisenberg, supra note 116, at 146. Directly modeling the decision toappeal based on their data, the authors argue that “case selection on appeal functionslargely as a random sampling, rather than a systematic screening.” Id., at 148.

132 The regressions, though, control for interlocutory appeals.133 Indeed, the database includes cases in which one party defaulted after losing on

jurisdiction in order to obtain an immediate appeal. A good example is Wilkinson v.Shackelford, 478 F.3d 957 (8th Cir. 2007). The plaintiff, whose motion to remand the caseto a state court was denied, voluntarily dismissed her remaining claims and then appealed.The appellate court indeed held that jurisdiction was lacking. However, such cases inwhich litigants defaulted to obtain a prompt review are scarce—presumably, defaultingentails a significant risk—a defaulting litigant can only appeal on preliminary grounds.

134 The practice of partial settlements is a relatively recent phenomenon, which can beexplained by the desire to reduce risky and costly trials. J.J. Prescott, Kathryn Spier, AlbertYoon, Trial and Settlement: A Study of High-Low Agreements (unpublished manuscript, onfile with author). In practice, partial settlements may also be motivated by the parties’desire to obtain immediate interim review, rigid rules of federal procedure notwithstanding.For practical examples in the context of patent claims see Geoffrey Gavin & MatthewWarenzak, Disputed Claim Constructions, 210 PAT. WORLD 30 (2009).

135 Note, in this context, that litigants regularly appeal although the prospects ofsuccess fall short of 50%. Similarly, certain circuits and judges (like Judges Posner andEasterbrook) have constantly shown higher reversal rates, but apparently litigants fail toadjust their behavior accordingly (for data on reversal rates see Tracey E. George, CourtFixing, 43 ARIZ. L. REV. 9 (2001)). See also Clermont and Eisenberg, supra note 116, at131–34.


merits, this tendency would wash out the results—we would observe anattenuated inclination to affirm jurisdiction decisions that were followed byheavy judicial investments. If anything, the capacity of litigants to adjusttheir decision to appeal means that the results we observe do not reflect thefull effect of prior judicial efforts on appellate decision-making.136

Litigants may also influence, to some extent, the quality of the districtcourt’s jurisdiction determinations. Litigants may invest more in resolvingjurisdiction where they expect lengthy litigation on the merits, in order toavoid paying potentially redundant legal expenses. Likewise, jurisdictionarguments can be raised time and again during trial—and litigants who loston jurisdiction once can raise an improved jurisdictional challenge whenthey understand how costly the trial is.137 On the other hand, jurisdiction istypically a legal question, which judges ought to raise sue sponte. Thecapacity of litigants to influence the jurisdiction ruling is questionable. Inaddition, these arguments imply that litigants with larger stakes producebetter jurisdiction resolutions at the trial court; however, I found no suchcorrelation between the value of the case and affirming the trial court’sjurisdiction.138 This suggests that litigants’ behavior cannot fully accountfor appellate courts’ tendency not to reverse the more efforts trial courtsspent on the case.

3. Trial Judges’ Behavior

Trial judges, one may argue, are the driving force behind the results.Anticipating a long trial following a jurisdiction determination, trial judgesmay react differently. Particularly, when judges expect a trial, they can aimat improving their jurisdiction resolution. As they tend to suffer from heavydockets, district judges would be careful not to mistakenly upholdjurisdiction and then proceed to a protracted adjudication. According to thislogic, an observed correlation between reversals of jurisdiction questionsand judicial input on the merits represents trial judges’ capacity to generatebetter jurisdiction determinations when complicated trials on the merits are

136 For an elaborated and formal discussion of this logic see Daniel Klerman & Yoon-Ho Alex Lee, Inferences from Litigated Cases (unpublished manuscript, on file withauthor). Klerman and Lee show that, under broad categories of cases and fairly generalassumptions, the capacity of litigants to litigate (or in our case appeal) selectively does notprevent inferences from litigated (or appealed) cases; if anything, this selection processweakens the observed results.

137 One can further argue that appellate judges respond to anticipated litigants’behavior. Hence, appellate courts might be inclined to affirm the trial court’s rulings onjurisdiction when they were followed by a lengthy trial, in order to induce litigants, ex-ante, to invest more in resolving jurisdiction.

138 See supra note 65 and accompanying text.


expected. The flipside of this argument is that district judges would be lesscareful when they mistakenly deny jurisdiction, as in this case an errorresults in fewer cases to adjudicate.139

To the extent this argument is taken as true, it essentially presents adifferent interpretation of the findings. The basic results persist—preliminary issues that are followed with heavy judicial investments on themerits are scrutinized differently than similar issues that are followed bylittle judicial investment. Indeed, the main prescriptive message of thisArticle—that interlocutory appeals subtly improve judicial decision-making—remains the same under this different interpretation. To the extentthe empirical findings are driven by trial judges’ behavior, interlocutoryreview can reduce judicial incentives to act strategically in face ofprospective, costly adjudication.

Regardless, one may wonder whether this description of trial judges’strategies is correct. In fact, an opposite strategy is plausible in case districtjudges predict appellate judges’ tendency to affirm—for whatever reason—when large, irreparable efforts are invested at the trial level. In order tomaximize their leisure and reduce odds of reversal,140 and anticipatingappellate courts’ inclination to affirm heavily invested decisions, trialjudges might, consciously or not, change their behavior in response. Inparticular, trial judges may reduce the quality of their jurisdictiondeterminations if extensive litigation is likely to follow. If this effect exists,it likely mitigates the observed phenomenon. This logic also means thatjudges would attempt to generate better jurisdiction decisions whereeffective review is more likely, i.e., when trial judges expect little judicialinvestment on the merits. Indeed, it was observed that a “realistic possibilityof [interlocutory] review . . . [m]ay spur district courts to take[interlocutory] decisions more seriously.”141 At this point it is hard to safelyconclude which strategies, if any, trial judges employ.142

139 Put differently, for trial judges a false-positive error (upholding jurisdiction) ismore costly than a false-negative error (denying jurisdiction).

140 Cf., Richard Posner, What Do Judges Maximize? (The Same Thing Everybody ElseDoes), 3 SUP. CT. ECON. REV. 1 (1993).

141 In the context of class certification, where there used to be no interlocutory review(1 WORKING ARTICLES OF THE ADVISORY COMMITTEE ON CIVIL RULES ON PROPOSED

AMENDMENTS TO CIVIL RULE 23, 411 (1997) (summary of comments by John L.McGoldrick)). See also Solimine & Hines, supra note 76, at 1565. This and other concernsled to the 1998 amendment that permits, through Rule 23(f) of the Federal Rules of CivilProcedure, interlocutory appeals from orders certifying class actions.

142 One can further argue that circuit courts react to trial judges’ strategic behavior.When trial judges uphold jurisdiction and then move on to a lengthy trial, they signal thatthey have gotten a better jurisdiction determination. Similarly, as appellate judges maybelieve that trial judges tend to shirk, appellate courts possibly discourage laziness byreversing fewer cases in which the trial court invested large resources.


CONCLUSION

This study uses the distinction between jurisdiction and meritsadjudication to reveal a surprising phenomenon: Appellate judges take intoaccount irrelevant efforts made by trial judges; the more efforts trial judgesinvested in the case, the less often appellate judges reverse. Some appealsthat should have been accepted are denied. The findings are non-trivial insize and robust under various specifications.

This phenomenon has far-reaching implications, and the Article focuseson one simple procedural modification. A broader right to interlocutoryappeals should rectify judges’ propensity to take into account past decisionsand hence improve appellate decision-making. This Article, then, adds anew perspective to the array of traditional arguments for and against thefinal judgment rule.

While the Article establishes a strong correlation between past effortsand reluctance to reverse, there is room for further research. Different studydesigns might better trace the origins of this phenomenon and rule outalternative readings of the findings.143 In this sense, this Article is a firststep in an unexplored direction.

143 One potential methodology is conducting an experiment and challengingparticipants with hypothetical situations. Ideally, such experiments can be administered onfederal judges. Cf., Guthrie et al., supra note 9.


APPENDIX

A. Summary Statistics

The database consists of appellate cases in which the court of appeals reviewsthe district court (explicit or implicit) assumption of jurisdiction:

Table A.1: JurisdictionJurisdiction Question Number of Cases (%)Reversed 120 (32.3%)Affirmed 234 (62.9%)Remanded 18 (4.8%)Total 372 (100%)144

The following table shows how the appellate court treated the merits inaddition to the jurisdiction question:

Table A.2: Final Disposition on the Merits versus Decision on JurisdictionJurisdiction

QuestionReversed

JurisdictionQuestionAffirmed

JurisdictionQuestion

Remanded

Total

Final disposition:Reversed 100 24 1 125Affirmed 20 174 0 194Remanded 0 36 17 53

Total 120 234 18 372

Cases in which the appellate court reversed jurisdiction but affirmed the finaldisposition represent situations in which the trial court dismissed on otherpreliminary grounds (rather than jurisdiction). As can be seen from the table, inone exceptional case the court of appeals held that it would normally remand thejurisdiction question, but then proceeded to the merits and reversed the case (In reCombustion Engineering, Inc., 391 F.3d 190 (3d Cir. 2004)).

As an independent variable, I used the procedural posture in which the caseended at the district court on the merits, after the district court upheld itsjurisdiction:

Table A.3: Final Procedural Posture at the District CourtProcedural Posture Number of Cases (%)Petition 28 (7.6%)

144 In two cases the court discussed the jurisdictional challenge but did not resolve it.In another case, two jurisdiction questions were raised and resolved in opposite directions.Hence, there are only 372 cases for this variable.


Motion 174 (46.9%)Summary judgment 112 (30.2%)Bench trial 28 (7.6%)Jury trial 29 (7.8%)Total 371 (100%)

This information was usually extracted from the appellate decision, and itrelies on the court’s own definitions. In some cases, the procedural posture inwhich the district court disposed of the case is not apparent from the appellateopinion. Where it was possible, I collected this information from the districtcourt’s decision or the parties’ appellate briefs. The final dataset includes 371cases; in four cases, the procedural posture is unknown.

Default judgments were coded as motion-to-dismiss cases, as a negligiblejudicial input was invested.

Only the current appeal is relevant—I ignored previous decisions for cases thathave already been remanded in the past (i.e., that appear at the appellate court inthe second time). The appellate judge cannot be deemed to save, by avoidingreversal, the judicial resources that were incurred at the first round.

The database includes several bankruptcy court decisions, which werereviewed by the district court before being reviewed by the court of appeals. Theprocedural posture at the trial court—i.e., the bankruptcy court—is the relevantone.

I coded the type of the case according to the following:

Table A.4: Type of CaseType of Case Number of Cases (%)Post-criminal 19 (5.1%)Criminal 23 (6.1%)Civil rights 59 (15.7%)Public law 73 (19.5%)Civil 201 (53.6%)Total 375 (100%)

Tables A.5, A.6, and A.7 present the distribution of the cases in the databaseaccording to the following dimensions: cases with a unanimous opinion(concurring opinions were coded as non-unanimous); class actions; andconsolidated cases:

Table A.5: DissentsType of Decision Number of Cases (%)Non-unanimous decision 31 (8.3%)Unanimous decision 344 (91.7%)Total 375 (100%)


Table A.6: Class ActionsType of Action Number of Cases (%)Class Actions 27 (7.2%)Non class actions 348 (92.8%)Total 375 (100%)

Table A.7: Consolidated CasesDocket Number Number of Cases (%)Consolidated 86 (22.9%)Individual 289 (77.1%)Total 375 (100%)

Cases diverge according to the party who initiated the appeal:

Table A.8: AppellantAppellant Number of Cases (%)Plaintiff 134 (35.7%)Defendant 205 (54.7%)Both/third party 36 (9.6%)Total 375 (100%)

Where a plaintiff brings a lawsuit in state court and the defendant removes to afederal court, the actual defendant was coded as “plaintiff.”

Judgment: I recorded the amount of the district-court judgment in civil caseswhere it was indicated by the appellate court. Where only the value of the suit wasindicated (e.g., “plaintiff demanded $1,000,000 in damages”), I recorded half ofthis value as the judgment (under the rough assumption that plaintiffs win 50% ofthe time). Using this method, 91 civil cases in the sample include data on theamount of judgment. The mean is $31,793,500 and the median is $500,750.

I also coded the district court from which the case originated; and the distance,in kilometers, from the district to the circuit headquarters. When theseheadquarters are located at the same place as the district court, the distance wascoded as 1. In case the district has several courthouses, I recorded the averagedistance from all courthouses to the circuit court headquarters. The averagedistance is 322.8km and the median is 64km.

B. Logit Regressions: The Effect of a Trial at the Lower Court

The following are the results of seven logit regressions, in which “jurisdiction”is the dependent variable; it equals 1 when the court of appeals affirms the districtcourt’s jurisdiction, and 0 when jurisdiction is reversed. The independent variableis the procedural posture.


Regression (1)—this is the basic regression. It includes all cases in thedatabase; the independent variable, trial, indicates whether there was a bench/jurytrial on the merits at the district court or not (1 and 0, respectively). This regressionalso includes circuit-court fixed effects.

Regression (2)—includes all cases in the database; the independent variablesrepresent the procedural posture in which the case ended (motion/summaryjudgment/bench trial/jury trial).

Regression (3)—same as (1), but includes district-court fixed effects instead ofcircuit-court fixed effects.

Regression (4)—same as (1), but the database includes only federal questioncases.

Regression (5)—same as (2), but the database includes only federal questioncases.

Regression (6)—same as (1), but summary orders are excluded from thedatabase.

Regression (7)—same as (1), but the database includes only decisions in whichthe phrase “subject-matter jurisdiction” appears in the summary/synopsis.

Table B.1: Procedural Posture and Reversal Rates of Jurisdiction Questions: AllObservations (Regressions (1)-(3))

Explanatory Variables(1)

Coefficient(Standard Error)

(2)Coefficient

(Standard Error)

(3)Coefficient

(Standard Error)Trial (bench/jury) 0.88 (0.44)** - 1.03 (0.50)**

Procedural posture:Summary judgment - 0.15 (0.28) -Bench trial - 1.39 (0.74)* -Jury trial - 0.59 (0.54) -

Interlocutory appeal -0.72 (0.38)* -0.65 (0.40)* -0.72 (0.43)*

Type of case:Civil rights 0.14 (0.63) 0.54 (0.60) 0.44 (0.69)Criminal 2.75 (1.22)** 2.79 (1.23)** 3.73 (1.14)***

Civil 0.62 (0.59) 0.54 (0.61) 0.91 (0.68)Public law 0.58 (0.63) 0.51 (0.65) 0.81 (0.70)

Unanimous opinion 0.10 (0.44) 0.12 (0.43) 0.23 (0.52)Nonconsolidated -0.18 (0.31) -0.17 (0.32) -0.19 (0.34)Non-class action -0.85 (0.48)* -0.88 (0.48)* -0.77 (0.50)Appellant:

Plaintiff -0.70 (0.50) -0.68 (0.50) -0.65 (0.53)Defendant -0.16 (0.48)(a) -0.16 (0.49) -0.26 (0.54)

Log(distance) -0.04 (0.06) -0.04 (0.06) 0.05 (0.25)Circuit fixed effects Yes Yes NoDistrict fixed effects No No YesYear fixed effects Yes Yes YesConstant 1.11 (1.05) 1.11 (1.05) 1.26 (1.19)Observations 367 367 352


Pseudo R squared 10.83% 11.11% 16.15%(a)—the joint effect of “appellant is plaintiff” and “appellant is defendant” has a p-value of 10% in Regression (1).*—indicates statistical significance at the 10% level.**—indicates statistical significance at the 5% level.***—indicates statistical significance at the 1% level.

Table B.2: Procedural Posture and Reversal Rates of Jurisdiction Questions:Subsamples (Regressions (4)-(7))



(5)Coefficient

(Standard Error)

(6)Coefficient

(Standard Error)

(7)Coefficient

(Standard Error)Trial (bench/jury) 1.96 (0.92)** - 0.95 (0.46)** 2.85 (0.85)***

Procedural posture:Summary judgment - -0.19 (0.48) - -Bench trial - 1.59 (1.29) - -Jury trial - 2.18 (1.18)* - -

Interlocutory appeal -0.85 (0.73) -0.88 (0.75) -0.74 (0.39)* 0.15 (0.85)Type of case:

Civil rights -0.30 (1.98) -0.17 (2.06) 0.11 (0.64) -1.83 (1.00)*

Criminal -(a) -(a) 2.71 (1.22)** -(a)

Civil -1.71 (1.76) -1.59 (1.81) 0.58 (0.60) -0.20 (0.83)Public law -1.36 (1.81) -1.25 (1.86) 0.68 (0.64) -0.56 (1.01)

Unanimous opinion 0.92 (0.74) 0.96 (0.74) 0.08 (0.43) 0.24 (0.99)Nonconsolidated -0.57 (0.54) -0.60 (0.54) -0.13 (0.33) -1.97 (0.68)**

Non-class action -1.15 (0.60)*(b) -1.09 (0.61)*(b) -0.77 (0.50) -0.27 (0.70)Appellant:

Plaintiff 0.48 (0.85) 0.55 (0.86) -0.85 (0.52)* 0.09 (1.11)Defendant 1.16 (0.85) 1.21 (0.88) -0.30 (0.51)(c) 0.82 (1.15)

Log(distance) -0.06 (0.12) -0.06 (0.12) -0.04 (0.06) -0.04 (0.13)Circuit fixed effects Yes Yes Yes YesDistrict fixed effects No No No NoYear fixed effects Yes Yes Yes YesConstant 1.02 (2.34) 0.85 (2.45) 1.21 (1.08) 1.82 (1.67)Observations 135 135 341 128Pseudo R Squared 17.63% 17.78% 10.85% 26.22%

(a)—the sample for Regressions (4), (5), and (7) does not include criminal cases.(b)—the joint effect of consolidated cases and class actions has a p-value of 5% inRegressions (4) and (5).(c)—the joint effect of “appellant is plaintiff” and “appellant is defendant” has a p-value of 10% in Regression (6).*—indicates statistical significance at the 10% level.**—indicates statistical significance at the 5% level.***—indicates statistical significance at the 1% level.


C. Multinomial Regression: Remands

The following are the results of two multinomial regressions. “Jurisdiction” isthe dependent variable; it equals 1 when the court of appeals affirms the districtcourt’s jurisdiction, 0 when it reverses, and 2 when the jurisdiction question isremanded to the trial court.

The regression includes all the cases in the database; column (1) is the effecton reversing jurisdiction; column (2) is the effect on remanding; base outcome isaffirming.

Table C.1: Procedural Posture and Reversal Rates of Jurisdiction Questions:Multinomial Regression



(2)Coefficient

(Standard Error)Trial (bench/jury) -0.79 (0.45)* 2.15 (0.88)**

Interlocutory Appeal 0.91 (0.39)** 2.43 (1.04)**

Type of case:Civil rights -0.19 (0.64) -17.12 (-)Criminal -2.71 (1.22)** -17.13 (-)Civil -0.57 (0.60) 18.67 (-)Public law -0.53 (0.64) 18.51 (-)

Unanimous Opinion 0.03 (0.44) 20.84 (-)Nonconsolidated 0.23 (0.32) 1.08 (0.73)Non-class action 0.62 (0.50) -2.11 (0.84)***

Appellant:Plaintiff 0.57 (0.52) -1.85 (0.87)**

Defendant -0.06 (0.51) -3.87 (1.09)***

Log(distance) 0.04 (0.06) 0.01 (0.15)Year fixed effects Yes YesCircuit fixed effects Yes YesConstant -0.87 (1.06) -38.95 (-)Observations 367Pseudo R Squared 18.58%

*—indicates statistical significance at the 10% level.**—indicates statistical significance at the 5% level.***—indicates statistical significance at the 1% level.

Documents

ARE JUDGES TIED TO THE PAST? EVIDENCE FROM JURISDICTION CASESportal.idc.ac.il/he/lawreview/conferences/documents/2014-lavie.pdf · The Article discusses the normative implications