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appellate jurisdiction, remand orders, Supreme Court role, supervisory power

Subject Categories

Courts | Dispute Resolution and Arbitration | Jurisdiction | Law | Litigation


Although some might consider the appellate review of remand orders as something of a jurisdictional backwater, recent developments suggest that the rules need attention. The Supreme Court has decided no fewer than four cases in the past few years and has failed to develop a persuasive framework. Indeed, one member of the Court, Justice Breyer, has invited "experts" to solve the problem.

In this essay, I suggest that the solution lies in the Court's own hands. Rather than proposing legislative or rulemaking solutions, I call on the Court to re-invigorate its supervisory powers and conduct direct review of district court remand orders under the All Writs Act. Such review would allow the Court to address important problems and would free the Court from the obligation to umpire the divisions that have arisen at the circuit court level as to the proper interpretation of 28 U.S.C. § 1447(d). The essay concludes with some thoughts about the respective roles of the Congress, the Court, and the rule makers in the crafting of jurisdictional law.