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Michael Harriss, HeplerBroom Law Clerk, Publishes in the Washington University Law Review

Michael Harriss, law clerk and incoming associate in HeplerBroom’s St. Louis office, recently published “Rebutting the Roberts Court: Reinventing the Collateral Order Doctrine Through Judicial Decision Making” in Volume 91, Issue 3 of the Washington University Law Review. The Law Review is the flagship journal of Washington University School of Law in St. Louis.

The piece focuses on the collateral order doctrine, which allows for an immediate appeal from orders that do not fit the traditional definition of a “final judgment” in federal court. Mr. Harriss argues that the Supreme Court, most notably in Mohawk Indus., Inc., v. Carpenter, 558 U.S. 100 (2009), has mistakenly interpreted 28 U.S.C. §§ 1292(e), 2072(c), which authorize interlocutory appeals and empower the Supreme Court to define those orders which qualify for such an appeal, as statutory limitations that prevent judicial expansion of the collateral order doctrine. By identifying and analyzing the legislative history of both statutes, the author contends that Congress’s intent in granting the Court rulemaking authority was to have the Court not only revise its finality jurisprudence but also expand the list of immediately appealable non-final orders. Rebutting the Court’s opinion in Mohawk Indus., Mr. Harriss argues that formal rulemaking is a supplement, not a bar, to expansion of the collateral order doctrine through judicial decision-making. The author suggests that the Court should effectuate Congress’s intent by articulating a more flexible, balanced approach to the collateral order doctrine that would inevitably expand, through judicial decision-making, the currently settled, strict confines of what qualifies as an immediately appealable non-final order.