Is Equity Outmoded?

August 13, 2015 § Leave a comment

I pointed out here not too long ago that there is a significant distinction between the systems of law and equity in civil actions. Law courts (except in the case of an injunction action) grant money judgments and common-law remedies such as writ of habeas corpus. Equity (chancery courts) craft a remedy that will solve the underlying problem by crafting a remedy that may include coercion, prohibition, possession, dispossession, imposition of a trust or lien, money judgment, and any other action or combination of actions deemed appropriate to the situation.

Yet, as fundamental as that distinction is, I have posited here before that it seems more and more to be a challenging concept to our appellate courts.

Even in states that have merged law and equity, the distinction between legal and equitable remedies is important, because in those states, equitable remedies may not be imposed until the court finds that legal remedies are inadequate. UCLA Law Professor Samuel Bray has written a paper pointing out that the classification of some remedies as equitable is alive and well in jurisprudence across the nation, and that equitable remedies are actually part of a system that must not be dismantled unless and until something better replaces it. I believe his piece helps illuminate how vital equity, and chancery court, is in the scheme of our jurisprudence.

Here is the abstract:

The conventional wisdom is that the distinction between legal and equitable remedies is outmoded and serves no purpose. This Article challenges that view. It argues that the existing equitable remedies and remedy-related doctrines can be seen as a system. The components of the system fall into three categories: (1) equitable remedies, (2) equitable managerial devices, and (3) equitable constraints. These components interact subtly and pervasively. Together, they make the system of equitable remedies well suited to controlling a defendant’s behavior, especially in ways that are open-ended and adverbial. The system of equitable remedies is a useful and integrated whole.

This argument offers some support for an emerging body of Supreme Court cases that have sharply distinguished between legal and equitable remedies — cases such as Great-West Life & Annuity Ins. Co. v. Knudson, eBay v. MercExchange, and Petrella v. MGM. Moreover, this argument helps explain why there has been so little merger between law and equity in remedies, even as merger has happened in other aspects of American law. Finally, this argument offers a new perspective on the adequacy requirement, showing that it helps maintain the system of equitable remedies.

You can reach his article at this link. You might find his research handy next time you have a chancery appeal involving equitable remedies.

Thanks to Professor Bray for bringing this to our attention.


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