Cohen & Digital The Collateral Order Doctrine

1. Cohen & Digital The Collateral Order Doctrine

2. 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

3. 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?

4. 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

5. 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

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

7. 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 (11th Amendment immunity)

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

9. 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

10. 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

11. 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.”

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

13. 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

14. 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

15. 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?

16. 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

17. 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?