On writing

Count me on the more formal side of this discussion.

TROs and appeals

Judge Timothy Kelly (D.D.C.) issued a TRO against the White House stripping three news outlets of press credentials. The court resolves the case on due process grounds--the failure to provide notice prior to taking away the credential.

The relevant points for our purposes come on pp 7-8.

First, the court declines to stay the TRO, pointing out that 1) TROs are not "generally unappealable" and 2) the whole point of a TRO is to immediately-but-temporarily preserve the status quo, a purpose undermined by a stay. As to # 1, courts of appeals have been allowing appeals of TROs in Trump-related litigation, albeit without explanation or applying the established criteria for treating a TRO as a PI. Judge Kelly emphasizes the 14-day duration, highlighting the key feature that makes something a TRO rather than a PI.

Second, FRCP 65(c) requires the court to impose a bond on the plaintiff obtaining the injunction--some money to cover the costs the defendant's suffer from a wrongly issued injunction. This was looming as in issue in the antitrust litigation over the Paramount merger, where Paramount was seeking a bond in the billions of dollars. In constitutional cases such as this one, courts tend to impose nominal bonds of $ 1, since the government's cost (inability to enforce a law or policy for a time) are not monetized. Judge Kelly did that here.

But note that this was a point of discussion in 2025, where DOJ was threatening to seek substantial bonds in constitutional cases. Many feared this would chill constitutional litigants and lawyers, who do not have the funds to post substantial bonds, from bringing litigation.

Update: Prof. Vladeck offers some thoughts on how the distinction between TRO and PI has collapsed, especially around stays and appealability.

For Monday, September 28

Tuesday audio.

Some last-minute clean-up on Courts of Appeals. Papers will be due the following Monday (October 5).

We then start District Courts. Prep Structure, Jurisdictional Overview, and Well Pleaded Complaint. 

SLAPPing COD

The Fifth Circuit with a new decision again holding that state SLAPP laws do not apply in federal court (you can review the Erie analysis for fun). For our purposes, it has a lengthy discussion of the multi-prong circuit split on whether the denial of an anti-SLAPP motion (often because the motion does not apply in federal court) falls within the COD.

Fair game for a reaction paper. Definitely on next year's oral arguments. 

§ 1257

One of our argument cases, which SCOTUS will hear this year, is Suncor Energy v. Cty. Commissioners of Boulder, on the issue of whether § 1257 and Article III allow SCOTUS to review a decision of the Colorado Supreme Court. Here are competing views on the question that might be useful for argument or just for understanding SCOTUS review of state courts.

COD and anonymity

First circuit decision affirming an order denying leave to proceed anonymously and refusing to close a trial. FN 9 explains why both orders are immediately reviewable.

For Tuesday, September 22

Tuesday audio. No class on Monday. I will try to plan make-ups for the two classes (next Monday and Labor Day) that we missed.

Prep and review Interlocutory Orders.

Just in case, District Courts should be ready to go; prep Structure. Then we will really get going with that the following Monday. 

For Tuesday, September 15

Monday audio. SCOTUS papers due at the beginning of class.

Here is FRAP 3 and FRAP 4, for your information.

We pick up with Mohawk--what was wrong with the Court's explanation on the third prong, how else could a party gain review, and how might you distinguish the denial of anonymity. Consider the distinct approaches to the third prong between the majority and Justice Alito.

Prep Interlocutory Orders. As part of that, have a look at this new Order dealing with § 1292(b) certification.