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Cohen

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Title: PowerPoint Presentation Author: AchtenbergD Last modified by: Preferred Customer Created Date: 6/11/2002 10:08:59 PM Document presentation format – PowerPoint PPT presentation

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Slides: 18
Provided by: AchtenbergD
Learn more at: http://www1.law.umkc.edu
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Title: Cohen


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 couldnt D have appealed that decision at the
    end of the case
  • If D won on the merits?
  • If D lost on the merits?
  • Isnt 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 Digitals 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 Digitals 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 Courts 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 Digitals 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 Courts 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?
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