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Supreme Court Justice Brett Kavanaugh: 2023 Notre Dame Law Review Federal Courts Symposium, Marcus Cole, Brett Kavanaugh

2019–Present: G. Marcus Cole

Jan 26, 2023

NOTRE DAME LAW SCHOOL

U.S. Supreme Court Associate Justice Brett Kavanaugh covered a range of topics during a keynote Q&A at the 2023 Notre Dame Law Review Federal Courts Symposium, held on January 23 in the McCartan Courtroom. Justice Kavanaugh was joined by G. Marcus Cole, the Joseph A. Matson Dean and Professor of Law at Notre Dame Law School, and responded to questions from students and faculty members in the audience.

Proper Parties, Proper Relief, Samuel L. Bray, William Baude

Journal Articles

From the Introduction

In the last Term at the United States Supreme Court [2022], standing was the critical question in several major cases: the two challenges to the Biden Administration’s first student loan forgiveness plan, Biden v. Nebraska and Department of Education v. Brown, as well as the challenge to the Administration’s immigration priorities in United States v. Texas and the race-discrimination challenge to the Indian Child Welfare Act in Haaland v. Brackeen. Standing has featured heavily in journalistic coverage of the decision in 303 Creative LLC v. Elenis. And standing may have been the reason for the Court’s stay …

Administrative Stays: Power And Procedure, Rachel Bayefsky

Notre Dame Law Review

Federal courts are often asked to issue various forms of expedited relief, including stays pending appeal. This Article explores a little examined device that federal courts employ to freeze legal proceedings until they are able to rule on a party’s request for a stay pending appeal: the “administrative” or “temporary” stay. A decision whether to impose an administrative stay can have significant effects in the real world, as illustrated by recent high-profile litigation on topics including immigration and abortion. Yet federal courts have not endorsed a uniform standard for determining whether an administrative stay is warranted or clarified the basis …

Stare Decisis And Intersystemic Adjudication, Nina Varsava

Notre Dame Law Review

Interpreting and following precedent is a complicated business. Various reasonable but conflicting methods of ascertaining the legal effect of precedent exist. Differences between practices of precedent or doctrines of stare decisis are particularly salient between legal systems or jurisdictions. For example, a state’s judges might embrace different stare decisis norms than federal judges. This situation presents a major quandary for intersystemic jurisprudence that has been largely overlooked in the scholarly literature.

Are law-applying judges in the intersystemic context bound by the law-supplying jurisdiction’s methods of interpreting precedent? For example, when the Seventh Circuit Court of Appeals adjudicates a question of …

Eliminating The Fugitive Disentitlement Doctrine In Immigration Matters, Tania N. Valdez

Notre Dame Law Review

Federal courts of appeals have declared that they may dismiss immigration appeals filed by noncitizens who are deemed “fugitives.” The fugitive disentitlement doctrine emerged in the criminal context with respect to defendants who had escaped from physical custody. Although the doctrine originated out of concerns that court orders could not be enforced against criminal fugitives, the doctrine has since crept into civil contexts, including immigration. But rather than invoking the doctrine for its originally intended purpose of ensuring that court orders could be enforced, courts now primarily invoke it for the purposes of punishment, deterrence, and protecting the dignity of …

Federal Courts And Takings Litigation, Ann Woolhandler, Julia D. Mahoney

Notre Dame Law Review

This Article first gives an overview of the role of the federal courts in takings claims over time, with a view to providing a more complete picture than that supplied by focusing either on the Lochner/New Deal-era dichotomy or on the advent of the 1871 Civil Rights Act (current § 1983). It traces the fairly robust role of the federal courts in protecting property under a nonconfiscation norm both before and during the Lochner era. It also points out that the legislative history of the 1871 Civil Rights Act does not support a firm conclusion that Congress intended takings …

The Judicial Reforms Of 1937, Barry Cushman

Journal Articles

The literature on reform of the federal courts in 1937 understandably focuses on the history and consequences of President Franklin D. Roosevelt’s ill-fated proposal to increase the membership of the Supreme Court. A series of decisions declaring various components of the New Deal unconstitutional had persuaded Roosevelt and some of his advisors that the best way out of the impasse was to enlarge the number of justiceships and to appoint to the new positions jurists who would be “dependable” supporters of the Administration’s program. Yet Roosevelt and congressional Democrats also were deeply troubled by what they perceived as judicial obstruction …

Statutes In Common Law Courts, Jeffrey Pojanowski

Journal Articles

The Supreme Court teaches that federal courts, unlike their counterparts in the states, are not general common law courts. Nevertheless, a perennial point of contention among federal law scholars is whether and how a court’s common law powers affect its treatment of statutes. Textualists point to federal courts’ lack of common law powers to reject purposivist statutory interpretation. Critics of textualism challenge this characterization of federal courts’ powers, leveraging a more robust notion of the judicial power to support purposivist or dynamic interpretation. This disagreement has become more important in recent years with the emergence of a refreshing movement in …

Federalism Doctrines And Abortion Cases: A Response To Professor Fallon, Anthony J. Bellia

Journal Articles

This Essay is a response to Professor Richard Fallon's article, If Roe Were Overruled: Abortion and the Constitution in a Post-Roe World. In that article, Professor Fallon argues that if the Supreme Court were to overrule Roe v. Wade, courts might well remain in the abortion-umpiring business. This Essay proposes a refinement on that analysis. It argues that in a post-Roe world courts would not necessarily subject questions involving abortion to the same kind of constitutional analysis in which the Court has engaged in Roe and its progeny, that is, balancing a state's interest in protecting life against a pregnant …