Document Type
Article
Publication Date
2023
Abstract
This Article concludes that interlocutory appeal of TRO decisions ought to be rare. This accords with the Supreme Court’s decision in Carson v. American Brands, Inc., which permits appeal of an order that is not an injunction, but which has the “practical effect” of an injunction, only when the decision has the effect of an injunction, threatens immediate serious or irreparable injury, and may be effectively reviewed only by immediate appeal. But recently three circuits have adopted more expansive approaches to TRO appeals, particularly in instances of governmental appeals. These approaches (1) contradict Supreme Court and congressional limits on interlocutory appeal; (2) give appellate courts unwarranted discretion, akin to certiorari review, to choose which TRO decisions are appealable; and (3) permit appeal on TRO records that are uniquely unsuitable for appellate review, typically featuring sparse factual and legal exposition and a limited district court decision. The limited record, in turn, constrains appellate courts in both error-correction and law-giving functions. The Article advocates for a return to narrow appeal of TRO decisions, primarily when the requirements of the Supreme Court’s “practical effect” analysis in Carson v. American Brands, Inc. have been satisfied, and it provides guidelines for assessing those requirements in the TRO context
Publication Title
Baylor L. Rev.
Volume
75
First Page
374
Recommended Citation
Genetin, Bernadette Bollas, "Appealable TROs: Restoring Irreparable Harm as the Touchstone for Instant Interlocutory Appeal of Temporary Restraining Orders" (2023). Akron Law Faculty Publications. 248.
https://ideaexchange.uakron.edu/ua_law_publications/248
