Bryan Lammon


Discretionary appeals currently play a limited role in federal appellate jurisdiction. But reformers have long argued for a larger role. And any wholesale reform of the current appellate-jurisdiction system will likely involve additional or expanded opportunities for discretionary appeals. In this essay, I offer three ideas for the future of discretionary appeals—what form they might take in a reformed system of federal appellate jurisdiction and how we might learn about their function. First, remove any limits on the types of decisions that can be certified for immediate appeal under 28 U.S.C. § 1292(b). Second, give parties one opportunity in a civil action to directly petition the court of appeals for an immediate appeal. And third, experiment with these and other possible reforms in a few circuits to see how they work. These ideas are admittedly preliminary. But we should start thinking about what discretionary appeals might look like in the future and how we might move towards that future.