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In Nken v. Holder, the Supreme Court delineated the standards that must guide a court’s discretion in deciding whether to stay injunctive relief pending appeal A “critical” factor is whether the stay applicant has made a “strong showing” of her likelihood to succeed on the merits of the appeal. Because of the critical label it is not surprising to see lower courts issue long decisions extensively predicting the decision of the appellate court on the merits. To preserve her interest in judicial review, the stay applicant must effectively show that she will win the appeal.

Stays play an important role in appellate judicial review but have received little academic commentary. This Article is the first to specifically argue against the evaluation of the merits within the decision to stay injunctive relief pending appeal. An evaluation of the merits, and the current emphasis on the merit factor, is not supported historically, theoretically, or practically Instead courts should look to whether a stay is necessary-due to any potentially changing circumstances, harm to the parties, and the public interest, similar to the other three Nken factors Courts must also explain their application of these stay factors. Otherwise, their decisions seem unjustified, inconsistent, and illegitimate.