Equity, equity–the new edition of Ames, Chafee, and Re

The remedies casebook with a systematic presentation of equity

|The Volokh Conspiracy |

I'm delighted that the third edition of Ames, Chafee, and Re on Remedies has gone to press, and it will be in print next month. My coauthor is Emily Sherwin. Although this is the third edition since Emily (with Ted Eisenberg and Joseph Re) revived the book and gave it its current name, the book has a much longer history–it goes back to materials on equity put together by James Barr Ames in 1904. If you're interested in remedies, this book offers a different view than the leading (and excellent) remedies casebook by Doug Laycock and Rick Hasen. Part of the difference is pedagogic approach–our book has more of a private law focus, has more history, and relies less on notes and more on a judicious pairing of cases of cases from different contexts to teach a principle. Another part of the difference is in the approach to equity.

Our preface puts the point this way:

This book treats equity as a vital part of modern law. Although equity has been procedurally retired, it continues to influence judicial decisionmaking. In particular, the division between legal and equitable remedies has proved stubbornly persistent. Accordingly, this book devotes significant space to equitable doctrines. In this edition the presentation of equity is more systematic, including new chapters on accounting for profits and equitable compensation.

Before saying more about equity, let me give a quick overview of the structure of this edition. There are five parts. The first is an introduction to remedies and the purposes of remedies. The second is damages. The third is legal restitution, which in this edition is now given its own place and a more coherent structure that is organized around four paradigm cases of restitution: mistaken payments, unsolicited benefits, failed contracts, and interference with property. The fourth part is equity. The fifth part is a miscellany–a chapter on remedies against the government (with a focus on suits against government officers and on structural injunctions), and new chapters on statutory damages and declaratory judgments.

The presentation of equity is focused on remedies. This is, after all, a remedies casebook. If you want a guide to substantive equity, the best source is Meagher, Gummow, & Lehane, an outstanding Australian treatise–it's what my colleague Paul Miller and I are using as the main text this semester for our equity seminar at Notre Dame. Nevertheless, even though it is a remedies casebook, the forthcoming edition of Ames, Chafee, and Re on Remedies is almost certainly the most systematic American presentation of equity in 60 years. There are ten chapters:

10. The History of Equity. This chapter starts with Maitland on equity's development, sketches the American history, addresses the formative idea of equity acting in personam, and covers the current state of the fusion of law and equity in the United States. Among the new materials in this edition are Alexander Hamilton on equity (alas, it never made it into the musical) and a better teaching case on the Seventh Amendment right to a civil jury trial–then-Judge Breyer's In re Evangelist opinion.

11. Equity's Powers and Principles. This chapter introduces equity's maxims and its enforcement apparatus (duty to obey, persons bound by a decree, contempt, receivers, various enforcement writs, and more). It also discusses the relationship of equity to territorial boundaries (including domestic and international anti-suit injunctions), the "equity will not" doctrines, and the relationship of equity to the Constitution–Article III, federalism, and the First Amendment. New materials in this edition include summaries of all the major maxims of equity from the latest edition of Meagher, Gummow, and Lehane (used with permission); two cases on the "equity will not" doctrines (one old, and one from 2017 in the California Supreme Court); Frothingham v. Mellon on equity and the Article III judicial power; and two cases on equity and the freedom of speech.

12. Injunctions. This chapter covers the core equitable remedy in contemporary American law, and it needed only some polishing and refining. The one new case is on the preliminary injunction, and there is also a more thorough discussion of the principles that preliminary injunctions are disfavored when they alter the status quo or require affirmative conduct.

13. Measuring Injunctive Relief. This is a short chapter–seven cases–on problems of specificity and scope for injunctions. There are no major changes in this edition.

14. Equitable Compensation. This completely new chapter introduces equitable compensation as a distinctive loss-based remedy in equity. It resembles damages at law, but with a number of differences (including no juries, no punishment, looser causation, offsets for expenses, and so on–you can read more in my Oxford Handbook chapter on Fiduciary Remedies). Four cases work through equitable compensation in tort, contract, and fiduciary settings, including the Supreme Court's decision several years ago in Cigna Corp. v. Amara. The last part of the chapter considers whether equitable compensation (and equity more generally) can punish, with the old standby of Rothko and also–introduced for the first time, I think, in an American casebook–the leading Commonwealth decision of Harris v. Digital Pulse. This part of the chapter has taken on increased salience in light of the Supreme Court's recent cert grant in Liu v. SEC.

15. Accounting for Profits. This chapter is also new, or perhaps more precisely it is set free to be itself instead of being mashed together with legal restitution.  The first half of the chapter is on accounting by fiduciaries (a new case is the old classic of Keech v. Sandford); the second half is on extensions beyond fiduciaries to other conscious wrongdoers and to infringers of IP rights (including two new cases).

16. Constructive Trust and Other Proprietary Equitable Remedies. Here, too, separating out legal and equitable restitutionary remedies allows a more logical structure. The "other proprietary equitable remedies" discussed are equitable lien and subrogation. Some of the expository materials and notes are new, and there is one new case (Kent v. Klein).

17. Specific Performance of Contracts. This is a lengthy and in-depth chapter, and as with the injunction chapters it was already in great shape. No major changes.

18. Equitable Rescission, Reformation, and Cancellation. Here there was addition by subtraction, with accounting for profits and declaratory judgment moved out to have their own chapters. Some of the older materials focused on remedies that grew up in the interstices of equitable procedure–quia timet, bill of peace, interpleader. Although those are still helpful topics for any judge or scholar who wants a sound grasp of equity's history, it is harder to justify them for a book about remedies today.

19. Equitable Defenses. In the previous edition, the chapter was called "Defenses" and included statutes of limitation and estoppel. Those are now cut, and the new chapter has a focused attention on equitable defenses, including excellent new cases on laches and unclean hands.

In short, if you are looking for a treatment of the law of remedies that is open and unabashed about how U.S. courts continue to distinguish law and equity, this book is for you. It is not a treatise. It is not the last word on equity. But if you're intrigued and want to learn more about this old idea that is increasingly important in American law, this casebook is a place to begin.