Edward H. Cooper

Timing as Jurisdiction: Federal Civil Appeals in Context

The final judgment rule has defined the jurisdiction of the federal courts of appeals from the beginning. A truly final judgment signals the finish of all the proceedings intended to complete action by the trial court. Over the years, courts and Congress have continually expanded the list of occasions for appeal before a truly final judgment. The final judgment requirement has been supplemented by a list of elaborations, expansions, evasions, and outright exceptions that is dazzling in its complexity. Lawyers and judges who are expert in working with the system are able to identify the doctrinal rules and lines of argument, but often encounter elusive uncertainty in seeking clear answers to many problems. Those who are less than expert are apt to go far astray. Surely the time has come to inquire whether all this complexity can be simplified. The purpose of these few pages is to show that the calculus of appeal timing is inherently complex. If we are to continue the effort to capture the calculus in rules, the rules will be correspondingly complex. The complex rules will have some virtues; nonetheless, the rules also are likely to generate misunderstanding and may tend to produce undesirable results. It is very tempting to replace the rules with a flexible system that relies largely on discretion to determine the occasions for appeal before a truly final judgment. Whether a flexible system has now become appropriate depends on the same institutional factors that make the calculus so complex. The best answer may be to adopt the framework for discretionary interlocutory appeals without yet abolishing present rules. As the discretionary system becomes more familiar, it should prove possible to discard many of the present rules in a gradual process of attrition. The most direct components of the appeal timing calculus are so familiar as to require no more than a brief reminder. If review of a trial court ruling is postponed until the final judgment, serious consequences may ensue. As to matters that bear only on the conduct of the litigation, an error may so taint subsequent proceedings as to require reversal and further proceedings. The further proceedings may not only represent an expensive duplication of effort, but may themselves be distorted beyond repair by the events of the first trial. As to matters that have effects beyond the court proceedings, irreparable injury may occur-confidential information may be revealed, construction of a flood-control project delayed by an

Attempts and Monopolization: A Mildly Expansionary Answer to the Prophylactic Riddle of Section 2

A. Attempt in Its Natural Role of Analogy to Completed Monopolization 378 B. Market Power Approaching Monopoly Power ..... 380 1. Monopoly Power 380 2. Dangerous Probability of Monopoly Power in a Relevant Market in Attempt Cases 384 C. Conduct and Intent Bordering on Monopolization .. 388 1. Intent and Conduct in Monopolization ........ 389 2. Specific Intent Without Monopolization ....... 392 a. Character of the intent 392 b. Extrinsic evidence of self-evaluation ....... 395 c. Intent as evaluation of conduct 397 d. Summary evaluation of the specific intent requirement: Is it really necessary? 398 3. Conduct Without Monopolization 400 a. Market power as a measure of conduct ...... 400 b. High market power and innocent behavior .. 401 c. Misuse of monopoly power 403 D. The Illusion of Attempts Cognate to a Judge-Made Offense of Monopolization 407