Academic highlight: Vladeck on pendent appellate jurisdiction
Over the last few years, Adam Liptak of The New York Times has questioned the value of amicus briefs by law professors and legal scholarship generally. Presumably, however, even Liptak would agree that Stephen Vladeck’s law review article on the problem of pendent appellate jurisdiction, followed by his amicus brief on the issue in Madigan v. Levin, are worthy contributions. (Full disclosure: Vladeck is a regular contributor to SCOTUSblog and is also my colleague at American University Washington College of Law.)
In his article, Pendent Appellate Bootstrapping, Vladeck argued that the federal courts of appeals have fallen into the bad habit of deciding broad merits questions in cases that come to them on interlocutory review. Although typically a party can appeal only after a final judgment by the district court puts an end to the case, a narrow exception to this “final judgment rule” permits immediate appeal on a small class of issues that are important and yet separable from the merits, such as whether defendants are entitled to qualified immunity. Vladeck complains that federal courts of appeals are now using such narrow and exceptional appeals as vehicles to examine merits issues — questions that he thinks they are ill-prepared to decide on an incomplete record, and which in any case they have no jurisdiction to address.
After authoring an article on the subject, Vladeck then wrote an amicus brief bringing this point to the Supreme Court’s attention in Madigan v. Levin. In Madigan, the Seventh Circuit heard an interlocutory appeal on the question whether the defendants had qualified immunity, but then used the appeal to decide important questions about the plaintiff’s ability to sue for equal protection violations under 42 U.S.C. § 1983. Although amicus briefs often have a fairly low profile, this one caught the attention of the entire Court, which devoted a significant portion of the oral argument to the jurisdictional problem, and shortly thereafter the Court dismissed the case as improvidently granted. Although we cannot know for sure why the Court decided to dismiss the case, it seems likely that Vladeck’s argument played a role — and perhaps has also given the courts of appeals reasons to hesitate before addressing merits issues on interlocutory review.