Steinman on Appellate Review of Summary Judgment Denials
Joan Steinman, Distinguished Professor of Law at Chicago-Kent School of Law, posted a piece on SSRN: The Puzzling Appeal of Summary Judgment Denials: When are Such Denials Reviewable? Steinman is a co-author of the excellent text, Appellate Courts, Structures, Functions, Processes and Personnel (2d ed. & 2009 Supp.). In this article, she examines the fractured state of the law regarding appeals of summary judgment denials, in particular those appeals brought after a trial and final judgment. She identifies both inter-circuit and intra-circuit splits on the appealability of such denials and some confusion over which types of denials are appealable. She notes that the U.S. Supreme Court weighed in on the issue in dicta in Jordan v. Ortiz, 131 S.Ct. 884 (2011), but argues that:
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. Few legal scholars have made a foray into this morass.
Steinman wades into the morass and offers observations, criticism, and a proposed approach to summary judgment appeals. This thoughtful piece is recommended to trial and appellate advocates alike.