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University of Miami Law Review

Abstract

While there has been increased interest in the Supreme Court’s use of emergency applications to decide substantive legal questions on an interim basis (sometimes called, controversially, the “shadow docket,” or sometimes the “emergency docket,” though more aptly labeled the “interim docket”), equivalent practices at the appellate level have largely been overlooked. Yet these practices—the use of stays, injunctions, and similar urgent interventions against trial court rulings—have significant parallels to their Supreme Court counterparts. This Article sheds light on the courts of appeals’ interim practice, with a focus on the Eleventh Circuit. It first reviews the procedures that govern interim practice and then considers critical unresolved questions regarding the status of interim practice, most notably the governing standards of review and the binding or non-binding nature of interim docket orders. It then analyzes the theoretical and normative aspects of the appellate interim docket in wider context. This Article reveals that appellate interim practice is central to understanding the full array of mechanisms by which legal disputes are resolved and is necessary to recognize the role of abbreviated litigation that channels an increasing amount of high-profile public law cases. Anxiety over the use of the interim docket is unwarranted; interim relief is an important mechanism for ensuring just results in litigation, including litigation about public law, on expedited timelines. Justice frequently requires a speedy resolution of a legal question, as when a district court erroneously enjoins the enforcement of an important federal or state law. In this sense, the interim docket is democracy affirming: it allows appellate courts to respect the will of the People as enacted by their elected representatives.

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