Professor Joan E. Steinman has an interesting new article posted on SSRN that discusses an important circuit split: The Puzzling Appeal of Summary Judgment Denials: When are Such Denials Reviewable? Here is the abstract:
An important aspect of summary judgment law is now in great disorder. The intermediate federal courts of appeals are split both internally and among themselves on the circumstances, if any, under which denials of summary judgment should be appealable after trial and final judgment, and a Supreme Court decision that addressed the contentious issues only in dicta made matters worse. The Court’s approach was off-the-cuff, its thought process superficial and in some respects flatly in error, and its dicta seriously misguided, with the result that the intermediate federal courts of appeals were left in a quandary over whether to follow the dicta. An additional layer of splits among the circuits resulted. This Article describes the circuit splits, analyzes Ortiz v. Jordan, examines how the courts of appeals have handled the issues since Ortiz and, most importantly, addresses the issues so unsatisfactorily treated in Ortiz.
The introduction to the Article explains the importance of the Article to anyone concerned with the workings of our court systems, because it raises significant issues about the appealability of harmful error, the circumstances under which interlocutory rulings are and are not "merged" in a judgment, and the relationship between interlocutory and post-judgment appeals. It raises important questions about the circumstances under which lower federal courts should, and should not, honor Supreme Court dicta. The Introduction also enumerates the multiple insights and contributions that the Article makes.
In its analysis section, the Article argues why interlocutory appeals of summary judgment denials should not be made more freely available, to reduce the occasions for post-judgment review. It argues that when pre-judgment appeals of denials of summary judgment are available, those appeals both are and should be permissive, rather than mandatory. Most significantly, it argues that regardless of whether interlocutory appeals of summary judgment are available, post-trial/post-judgment appeals of the denials should be allowed when the denials were based on conclusions of law, rather than on the existence of genuine issues of material fact. In so arguing, I disagree with the position taken in dicta by the Supreme Court in Ortiz.
The analysis section is multi-faceted. It debunks the allegedly problematic nature of relying on a law/fact distinction to distinguish differently based summary judgment denials; undermines the view that adequate alternative remedies exist, with particular focus on Federal Rule of Civil Procedure 50; rejects the argument that post-judgment appeals of law-based summary judgment denials will come as an unfair surprise to the successful litigant in the trial court; considers whether the system should require litigants to offer trial judges an opportunity to reconsider their summary judgment denials and how that might best be done; shows the error of the views that the interlocutory nature of summary judgment denials constitutes a reason to deny post-judgment appeal and that it is necessary to preclude post-judgment appeals of law-based summary judgment denials to avoid greater injustice; and establishes that the fear of wasted trials is not an adequate reason to reject such appeals. The Article also calls for rejection of Supreme Court dicta that is not well-reasoned. The Article recommends what it takes to be the appropriate approach and concludes.