The Two Faces of Stays Pending Appeal: An Essay on Institutionalism and Appellate Procedure

Charles M. Yablon*

As I sometimes tell my students, the difference between Constitutional Law scholars and Civil Procedure teachers is that although we both write about Supreme Court decisions, Civ Pro teachers only get to write about the boring ones. So imagine my elation in June 2023 upon reading the Supreme Court’s decision in Coinbase, Inc. v. Bielski (Coinbase v. Bielski).¹ In that hotly contested but little noticed case, a 5–4 majority held that the losing party in a motion to compel arbitration has an “automatic”² right to a stay pending appeal, thereby refusing to apply the “traditional” four-part balancing test for determining whether to grant such stays.³ Great, I thought, an opportunity to contrast and evaluate two competing conceptions of the little-understood role of the stay pending appeal, which may seem an arcane and technical aspect of the litigation process, but which, as all true Civ Pro aficionados know, can sometimes be the key to winning cases, or at least achieving a fat settlement offer.

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© 2026 Charles M. Yablon. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review Reflection, and includes this provision in the copyright notice.

*Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University.

1 Coinbase, Inc. v. Bielski, 143 S. Ct. 1915 (2023).

2 Id. at 1920, 1923.

3 Id. at 1924 (Jackson, J., dissenting).