In light of the Trump litigation, that’s a hot, nerdy topic. Read “Appealing Temporary Restraining Orders” by Tyler Lindley, Wesley White, and Morgan Bronson of BYU Law School.
Here’s the abstract:
Temporary restraining orders (TROs) are a powerful injunctive tool for district courts to maintain control over a case by directly controlling the parties’ out-of-court conduct, especially when both the facts on the ground and the litigation are moving at breakneck speed. In response to the wave of TROs against the Trump Administration, appellate courts have struggled with the power of these orders and the longstanding rule that parties cannot appeal from TROs. But that rule is not found anywhere in the relevant statute, which authorizes interlocutory appeals from any order concerning an injunction. To the contrary, an examination of the history of TROs and interlocutory appeals reveals that TROs were not appealable solely because of a now-repealed statutory requirement that the appealed-from interlocutory order be issued “upon a hearing.” Even if that requirement applies today, most modern TROs (especially against government defendants) are now issued after a hearing and so should be appealable. Those appeals might quickly become moot as the TRO expires or merges into a preliminary injunction, but appellate courts should nevertheless have the option to expedite the appeal or grant emergency relief.
