Kristin B. Gerdy,
Important” and “Irreversible” but Maybe Not “Unreviewable”: The Dilemma of Protecting Defendants’ Rights Through the Collateral Order Doctrine,
38 U.S.F. L. Rev.,
Available at: http://digitalcommons.law.byu.edu/faculty_scholarship/101
collateral order doctrine, forced medication, final judgment rule
This articles addresses the collateral order doctrine beginning with its inception in Cohen v. Beneficial Industrial Loan Corp., and continuing through an overview of theCourt's civil collateral order jurisprudence illustrating the development of the "requirements" for attaining appellate review under the doctrine. It examines the role of "important rights" in the Court's collateral order cases and attempts to determine whether "importance" is an additional requirement of the collateral order test. The author seeks to define what the Court means by an "important" right or issue, and to explain the view that some rights are sufficiently "important" to outweigh costs of piecemeal appeals. The author considers the "unreviewability" requirement of the collateral order doctrine, specifically what constitutes an "unreviewable" order under the doctrineand what, if anything, is the distinction between an "unreviewable" order and an order that leads to "irreversible" harm. Finally, the author examines the most recent casein which the Court discussed and applied the collateral order doctrine, Sell v. United States, contending that both the majority's markedly broad reading and the dissent's highly restrictive view of both the collateral order doctrine's requirements and its application to pre-trial involuntary medication orders are inconsistent with and further complicate the Court's prior collateral order jurisprudence. Finally, the author proposes a way that the collateral order doctrine could be applied in the involuntary medication setting while upholding the doctrine's narrow application and furthering the policies behind the final judgment rule.
38 U.S.F. L. Rev.