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Publication Date

2018

Abstract

A proper notice of appeal is a necessary first step in
most federal appeals. But federal litigants sometimes
file their notice of appeal early, before district court
proceedings have ended. When those proceedingsfinally
end and no new notice is filed, the law of cumulative
finality determines what effect-if any-the premature
notice has. Sometimes the notice is effective and the
appeal proceeds as normal. Sometimes it's not, and
litigants lose their right to appeal.
At least, that's how the law of cumulative finality looks
from a distance. Up close, the courts of appeals are
hopelessly divided on matters of cumulative finality.
They disagree on what law governs cumulative finality
issues-whether they are governed solely by Rule of
Appellate Procedure 4(a)(2) or also by a common-law
cumulative finality doctrine that preceded the rule-and
under what conditions a premature notice of appeal is
saved. Three distinct approaches to cumulative finality
have emerged, resulting in a deep circuit split. To make
matters worse, decisions within several of the circuits
have applied different approaches, resulting in intra-
circuit divides.
This Article offers a fix. Neither the text of the Rules
of Appellate Procedure nor their history provide a clear
cumulative finality rule. But looking to the
practicalitiesof the issue suggests allowing a subsequent
judgment to save any prematurely filed notice of appeal.
Doing so imposes few costs while preserving litigants'
right to appeal.

The current cumulative finality mess illuminates a
larger issue with the appellate jurisdiction literature
and its attendant reform efforts. The literaturehas long
maligned the unnecessary complexity and uncertainty of
the entire federal appellate jurisdiction regime and
advocated reform. But most of that literaturefocuses on
only one part of that regime-appeals before a final
judgment. Equally important are issues with
determining when district court proceedings have ended
and parties thus have a right to appeal. Cumulative
finality is only one piece in this other aspect of appellate
jurisdiction. There are more. Successful reform might
require establishing a new, clearer point at which
parties have a right to appeal. So this other aspect of
appellate jurisdiction needs similar attention if reform
is to succeed

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