The Volokh Conspiracy

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Ground-Breaking Articles on Equity in the Federal Courts

The new federal courts issue of the Notre Dame Law Review


The annual federal courts issue of the Notre Dame Law Review has just gone live, and it's on the equity powers of the federal courts. That is a super-timely question–see Whole Women's Health v. Jackson, e.g.–but it's also one that has staying power. Since Grupo Mexicano in 1999, the U.S. Supreme Court has averaged one major equity case each term. The ones through 2015 are discussed here, but the trend has not abated, and if anything it has accelerated in the last seven years. The Court's renewed interest in equity cuts across ideological lines, and some of the leading opinions have been written not only by more conservative justices but also by more liberal ones (e.g., Amara, by Justice Breyer; Petrella, by Justice Ginsburg; and Liu, by Justice Sotomayor).

The increasing importance of equity in the federal courts is the backdrop for this issue of the Notre Dame Law Review. The symposium featured an excellent keynote address by Justice Barrett, and the published papers are by a very, very strong set of scholars. The range of perspectives is wide, the problems addressed important, and the quality of analysis superb. This symposium issue is a port of entry for people interested in equity in the federal courts, and it will be the starting point for years to come on the intersection of equity and the federal courts. Here are the papers, listed in author-alphabetical order. Tolle lege!

Rachel Bayefsky, Administrative Stays: Power and Procedure

Samuel L. Bray and Paul B. Miller, Getting into Equity

Seth Davis, Empire in Equity

Kellen Funk, Equity's Federalism

John Harrison, Federal Judicial Power and Federal Equity Without Federal Equity Powers

Andrew Kull, Equity's Atrophy

Michael T. Morley, Constitutional Tolling and Preenforcement Challenges to Private Rights of Action

James E. Pfander and Peter C. Douglas, Law, Equity, and Supplemental Jurisdiction

Fred O. Smith, Jr., Abstaining Equitably

Mila Sohoni, Equity and the Sovereign

Ernest A. Young, Standing, Equity, and Injury in Fact