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This paper draws on insights from cognitive psychology to understand how courts conceive of categories of orders. Cognitive psychologists have shown that people understand the world using not only "classical categories" based on logical definitions, but also "conceptual categories" based on fuzzier, intuitive concepts of similarity and typicality. This paper approaches appealability as a two-step process-first, categorizing the order and, second, applying the appropriate doctrine. Previous interventions have focused on whether different doctrines use rules or standards at the second step. This paper focuses on the initial categorization step.

This paper makes two contributions to the study of federal appealability. First, it maps the appealability doctrines on both a rules-standards continuum and a classical conceptual categorical continuum. It shows that different applications of the final judgment rule employ different categorical approaches. Sometimes, when applied to formal final judgments and truly final orders, the final-judgment rule uses classical categories of finality. But in other applications, particularly the finality-for-appeal doctrines, it uses conceptual categories. Second, this paper argues that, despite the Supreme Court's categorical imperative, courts should employ a flexible conceptual approach to identify new categories of orders that are final-for-appeal. It posits some potential features of those new conceptual categories. Over time, intuitive, conceptual categories could produce more definite classical categories, but only if courts have the opportunity to implement and iterate on them. Shutting down the finality-for-appeal doctrines because of the Court's categorical imperative would frustrate that development.

Creative Commons License

Creative Commons Attribution 4.0 International License
This work is licensed under a Creative Commons Attribution 4.0 International License.