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University of California Berkeley School of Law




After judges issue orders or judgments, they often face the difficult task of making a determination even more complex than that of the underlying order, but in less time, with less guidance, and with high stakes. These judges are deciding whether to grant a stay pending appeal — whether to prevent the enforcement of a court order or judgment until a court has decided the appeal. Although stays may seem to be a mere procedural technicality, stays are, instead, the new battleground for injunctive litigation. While review was pending, stay determinations have decided if abortion providers could operate in Texas, if 300,000 registered voters in Wisconsin would be able to vote, if same-sex couples could marry, if a transgender teenager could use the boys’ restrooms at his high school, if the government could enforce an Executive Order banning certain Muslims from entering the country, and, arguably, decided who would be the forty-third U.S. President.

Although the standard for stay determinations ostensibly includes four factors — the likelihood of success on appeal, the likelihood of irreparable harm pending appeal, the balance of the hardships, and the public interest — courts vary so widely regarding what constitutes each prong and the manner in which courts should weigh each prong, if at all, that there is more idiosyncrasy than standard. Compounding the absence of a uniform stays standard, courts frequently give no reasoning or opinion for stay determinations. With life- and potentially world-changing issues on the line pending appeal, stays are a nearly law-free zone. There has been no cohesive, principled, and practical basis for the standards or procedures that judges use to determine applications for stays pending appeal. This Article is the first in a series that attempts to fill that gap.

The author argues that the purpose of a stay pending appeal is to protect a meaningful opportunity to appeal where guaranteed. The Article suggests different standards for stays turning on whether review is guaranteed or discretionary. The author also asserts that courts should write reasoned opinions for stay decisions.

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