Cohen & Digital The Collateral Order Doctrine

Cohen What sort of suit was P bringing? Derivative action What did D want court to do? Order P to post bond for Costs & Attorneys’ fees $125,000

Cohen Did trial court order it? No Why couldn’t D have appealed that decision at the end of the case If D won on the merits? If D lost on the merits? Isn’t that a problem for Congress to deal with?

Cohen What standard does Cohen set for appealable collateral orders? Small class of cases Finally determine an issue Separable from & collateral to the merits Too important to be denied review Too independent to be deferred

Digital Equipment What was Digital’s argument for collateral order treatment Settlement created “right not to stand trial” That will be irretrievably lost Like rights in Abney, Mitchell etc Therefore, it should be treated like Abney, Mitchell

Digital Equipment What sort of argument about prior case law is made by Souter in Digital? Bracketing & Distinguishing

Digital Equipment What cases had been treated as appealable collateral orders? Cohen (bond) Abney (double jeopardy) Nixon (absolute immunity) Mitchell (qualified immunity) Puerto Rico Aqueduct (11 th Amendment immunity)

Digital Equipment What rulings have not been treated as appealable collateral orders? Attorney disqualifications Evidentiary rulings Restrictions on intervention Death knell rulings

Digital Equipment Rulings have not been treated as appealable collateral orders (cont) Upholding personal jurisdiction Holding S/L not run Speedy trial right not violated Action not barred by preclusion Summary judgment denied 12(b)(6) denied

Digital Equipment Rulings have not been treated as appealable collateral orders (cont) Refusing dismissal despite grand jury secrecy violation Denying effect to contractual forum selection clause

Digital Equipment How does Souter use the negative cases to destroy the verbal basis of Digital’s argument? Many of them represented rights that would be “irretrievably lost” Many of them could be fairly characterized as giving a “right not to stand trial.”

Digital Equipment How does Souter use both sets of cases to establish a new (or clearer) rule?

Digital Equipment All the cases treated as collateral orders involved Public law-based rights That can be seen as Important and Expressing a public interest in Protecting D from trial Not just causing D to win

Digital Equipment The rulings denied collateral order treatment involved rights that are less important because they are Privately created rights, or Public-law based rights that give D The right to dismissal But not the right not to be tried

Digital Equipment How does Souter protect the Court’s future freedom? Explicitly declines to say that no contract-based right could ever justify collateral order treatment Why did he do that? So, has he really established a “rule” at all?

Digital Equipment How does Souter deal with Digital’s implicit policy argument that denying C/O effect will deter settlements Avoiding Trial probably not major incentive Must view class of cases – not this one (level of abstraction) Other remedies available

Digital Equipment How does Souter protect the Court’s future freedom? Explicitly declines to say that no contract-based right could ever justify collateral order treatment Why did he do that? So, has he really established a “rule” at all?