Should Cohill Remands Be Subject to Appellate Review?
To conclude that Cohill remands are reviewable on appeal does not answer the question of whether Cohill remands should be reviewable on appeal. According to the Supreme Court, the goal of § 1447(d) is to avoid litigation about which of two competent court systems will try remanded claims. Thus, the conclusion that Cohill remands are unreviewable would serve the purpose of § 1447(d) in any case where there is no question about whether a state court is competent to try the remanded claims. Assuming that the goal of decreasing litigation over “nonmerits” issues is worthwhile, the question becomes how best to achieve it. One option is for the Court and Congress to maintain the status quo. As things stand now, the Court has insisted that §§ 1447(c) and (d) must be read together and Congress has not indicated that it disapproves of that interpretation. If Thermtron and its progeny (from both the Supreme Court and the lower courts) are any indication, however, the status quo has not accomplis
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- Should Cohill Remands Be Subject to Appellate Review?
