Dizzying Gillespie: The Exaggerated Death of the Balancing Approach and the Inescapable Allure of Flexibility in Appellate Jurisdiction

Bryan Lammon*

In Gillespie v. U.S. Steel Corp., the Supreme Court emphasized that the final-judgment rule—the general rule delaying appellate review of a district court decision until the district court reaches a final judgment on the case—must be given a practical rather than technical construction. Gillespie seemed to promise a new approach to federal appellate jurisdiction: a balancing approach that would allow courts of appeals to determine, case-by-case, whether to allow an appeal before a final judgment. But it was not long before the Supreme Court retreated from Gillespie, cabining the decision to its facts, and the Court nowadays adamantly rejects ad hoc balancing in appellate jurisdiction.

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* Assistant Professor, University of Toledo College of Law. My thanks to Pauline Kim, Ken Kilbert (who gets extra thanks and credit for the title), Liz McCuskey, James E. Pfander, and Michael Solimine, and to participants in the Ninth Annual Junior Faculty Federal Courts Workshop, the 2015 Central States Law Schools Scholarship Conference, and the University of Toledo College of Law faculty roundtable. Thanks also to the University of Toledo College of Law for providing summer funding for this project. And special thanks to Nicole Porter.