In the great restructuring of first year civil procedure courses during the 1990s, one of many topics to fall victim to civil procedure triage was the final judgment rule and doctrines of appellate jurisdiction. Historically, the Supreme Court was highly engaged with the final judgment rule. During the 1980s the Court — seemingly obsessed with the collateral order doctrine — issued new decisions nearly every year concerning whether various court orders fell within this judicially created exception to the final judgment rule. But then the guns of the collateral order doctrine fell silent. For nearly four decades the Court did not consider the rule and its exceptions until Microsoft Corp. v. Baker in 2017.
In Manufacturing Finality, Bryan Lammon resuscitates academic discussion of the final judgment rule and the new inroads on interlocutory appeals presented by Microsoft. Making passing reference to statutory exceptions in Rule 54(b) and 28 U.S.C. § 1292(b) and no mention of the collateral order doctrine or mandamus, Lammon focuses on the finality that the Microsoft plaintiffs unsuccessfully sought to manufacture, which Lammon characterizes as the new “hot topic” in procedure.
Lammon offers the Microsoft decision as the archetype of manufactured finality. In Microsoft, a federal district court denied the plaintiffs’ class certification and the Ninth Circuit declined to exercise interlocutory jurisdiction under Rule 23(f). The rebuffed plaintiffs voluntarily dismissed their individual claims with prejudice and then sought appellate review from that final decision. The Supreme Court rejected the effort, holding that a voluntary dismissal is not a final decision under § 1291.
Lammon engages with post-Microsoft litigant efforts to manufacture finality and thereby accomplish an end-run around the final judgment rule. He identifies two characteristics of manufactured finality, while admitting they constitute a broad and not terribly helpful definition. First, the decision resolves fewer than all claims in an action. And second, litigants seek to produce a “final decision” ending district court proceedings by some means other than an adversarial resolution of all unresolved claims.
Most of these techniques involve variations on Rule 41 dismissals, most frequently voluntary dismissals. Courts have struggled to apply Microsoft and have split on how it affects attempts at manufactured finality in an array of cases. Lammon’s article provides the definitive catalogue of manufactured finality. He undertakes a nuanced understanding of how litigants engage in assorted conduct to effectuate manufactured finality. He drills down into an array of variables that distinguish different types of manufactured finality and creates typologies of interlocutory orders and means that claimants use to abandon claims, pause claims, or seek adverse judgment of claims. He then exhaustively describes how appellate courts have endeavored to apply the Microsoft limitation on manufactured finality in ever-varied procedural maneuvers. One is reminded, surveying this array of emerging jurisprudence of manufactured finality from numerous court orders, of the twists and eddies of collateral order jurisprudence from an earlier era.
Lammon claims that he does not intend merely to discuss the contours of manufactured finality in the wake of Microsoft. Rather, he grandly suggests that Microsoft and its progeny raise larger questions about federal appellate jurisdiction and the final judgment rule, and how we define finality for the purpose of end-of-proceedings appeals. He suggests that the problem of manufactured finality might give rise to an alternative conception of finality that turns on the simple question of whether the district court has finished with an action. He suggests that the emerging manufactured finality jurisprudence might inspire a reassessment of the role of parties in determining when appeals should come, on the (perhaps controversial) view that litigants might be good at identifying the circumstances warranting immediate appeal and should be granted greater control over the issue.
Lammon’s article is an ambitious undertaking of this intellectual niche of manufactured finality. It is worth reading for his identifying problems with the final judgment rule and questioning received concepts of finality. He concludes by suggesting that studying the new doctrine of manufactured finality causes one to look beyond Microsoft and think about new, simpler, and better ways of defining finality and final judgments and new, simpler, and better ways of allocating power to decide when and how appeals are appropriate.
