Equity in United States v. Texas, Part 3

This is the third post on equity in the United States v. Texas litigation. (The first one is here, and the second here.) How has Grupo Mexicano been received so far in the case?

Let's start in this post with the district court's opinion. It says this:

The State is mistaken in searching for a blueprint of the cause of action here. For the United States' cause of action is a creature of equity, a centuries-old vehicle which eschews categorical definition. That remedy is available where no adequate remedy exists at law; any attempt to codify such situations would be futile, and likely require powers of clairvoyance which no legislator possesses.

There's a lot here that's right. The United States is suing in equity. Equity does eschew categorical definition. Equitable remedies (at least in equity's concurrent jurisdiction) depend on there being no adequate remedy at law. And equity does resist codification. And the line about the legislator's clairvoyance might be a nice allusion by the district court to the Nicomachean Ethics, where equity is precisely for situations that the legislator could not foresee. (For more on that sense of "equity," you can read A Student's Guide to the Meanings of Equity.)

But to say equity eschews "categorical definition" doesn't mean there are no rules, no patterns, no definition. In the immortal words of The Big Lebowski, "This is not 'Nam, this is bowling. There are rules." And the Court said very clearly in Grupo Mexicano that, in the federal courts, equity—what we could call its rules, patterns, and definition—is traditional equity.

So the opinion next tries to distinguish Grupo Mexicano, and here's where it runs off the rails:

Relying on Grupo Mexicano de Desarrollo S.A.v. All.BondFund, Inc., 527 U.S.308 (1999), the State argues for limiting equitable actions to the exact claims available at common law. (Resp., Dkt. 43, at 14). That reliance, however, is misplaced. Grupo Mexicano at most stands for the proposition that federal courts have jurisdiction over suits in equity, in which the broad equitable remedies that predate the Constitution remain available. The formal source of that jurisdiction is codified in the Judiciary Act of 1789, as discussed in Grupo Mexicano. However, the principle itself is broader and is not defined by that Act. Indeed, by the time he returned to the question in Armstrong, Justice Scalia—the author of Grupo Mexicano—had dispensed with any need to locate this power in the Judiciary Act. Nowhere in the latter case did he cite to the Judiciary Act. Rather, he wrote of general equitable powers "tracing back to England," translating to the "judge-made remedy" in the federal courts. Armstrong, 575 U.S. at 327. It is the essential nature of equity that it is not subject to strict limitations, unless and until Congress acts directly to restrict it.

Here the district court rejects—and rightly so—the argument that equity is limited to "the exact claims" that were historically available. That would be a too-rigid reading of Grupo Mexicano. But the district court goes further and gives three arguments for distinguishing Grupo Mexicano, and none of them work.

The first is that Grupo Mexicano says "at most" that the federal courts can give "the broad equitable remedies that predate the Constitution." In other words, on this reading, Grupo Mexicano was affirming the grant of traditional equitable powers, but it did not deny that there were any other equitable powers ("the principle itself is broader and is not defined by that Act"). That's an impossible reading of Grupo Mexicano, and would more or less line up with the Grupo Mexicano dissent. The Court held that a traditional basis in equity was not just sufficient but necessary for the exercise of federal equity power.

The second argument is that Armstrong overruled Grupo Mexicano sub silentio. That is startling and implausible.

The third argument is that equity is unlimited unless Congress restricts it. But that's the exact opposite of what the Court says in Grupo Mexicano: congressional authorization is required to go beyond the equity tradition. (As I mentioned in an earlier post, that's the least persuasive part of the Grupo Mexicano decision, but that doesn't mean it can be turned on its head.)

In effect, the district court opinion treats Grupo Mexicano as if the dissent had prevailed, with federal courts having an undefined power, subject to no strict limitations, to right all wrongs, subject only to congressional limitations. This is not a plausible reading of Grupo Mexicano. Indeed, on the district court's reading of that case, it would almost certainly have come out the other way. But the district court was right to call attention to the fact that the United States is suing in equity, and to the importance in equity of assessing whether there is an adequate remedy at law.

---

NOTE: If you'd like to read more about Grupo Mexicano, here are four views. A less critical one is my The Supreme Court and the New Equity. More critical ones are Steve Burbank's The Bitter with the Sweet: Tradition, History, and Limitations on Federal Judicial Power—A Case Study; Jim Pfander and Wade Formo's The Past and Future of Equitable Remedies: An Essay for Frank Johnson; and Judith Resnik's Constricting Remedies: The Rehnquist Judiciary, Congress, and Federal Power.

Comments

[DaivdBehar]

Equity = feelings, biases, capricious tantrum of the scumbag lawyer on the bench. This has zero external validity. It violates Due Process right to a fair hearing, and is just tyranny.

[DaivdBehar]

Equity was useful when the sole remedy was the death penalty. Kill a stag on the King's land, you hang. That needed a judge to soften it. Today, the remedies are too lenient for criminals, too rough for victims. One wonders if equity can now be used to force the prosecutor to not prosecute store owners killing looters.

[Lee Moore]

I'm not quite sure i would go as far as Mr Behar, but having read all of Prof Bray's pieces on this - including going back to his excellent Idiot's Guide to Equity - this line from the District Court seems to sum it up :

That remedy is available where no adequate remedy exists at law

Which seems to me to mean that equity is a principle whereby judges permit themselves to award the win to the side that would have lost, had the judges stuck to the law. Of course it's more complicated than that, because equity has become a part of the law, and so there's a sense in which equity is legal rather than extralegal.
But there's also a sense in which it's not.

The very "rabbit-out-of-a-hat-to-achieve-a-particular-result" quality that makes equity different from common law or statute law ensures that equity cannot be contained within the concept of the rule of law.

It may have been been necessary once, when the English courts were weaving the law otherwise than by a deluge of statutes, but now that we have moved on to a more statutory system, it seems to me that we should sup with equity with a very long spoon.

At minimum, since it seems to involve judges not merely substituting their own opinions for the law, but also vigorously patting themselves on the back for doing so, we could perhaps - statutorily - insist on unanimity on the judicial bench where the decision rests on "equity."

If the theory is that equity exists to allow the legal belt to be loosened a bit, where following the law in a particular case would be egregiously wrong or unfair, then once it gets to a multijudge court, let the whole flock agree on the egregiosity.

[Dilan Esper]

Which seems to me to mean that equity is a principle whereby judges permit themselves to award the win to the side that would have lost, had the judges stuck to the law.

This is incorrect because equitable remedies are more limited. For instance, there's no equitable remedy of compensatory damages: only a common law court could award those. So, e.g., in a fraud case, a person who invokes equitable jurisdiction might get their money back (i.e., restitution, an equitable remedy) but can't get the benefit of their promised bargain.

[Lee Moore]

So why would they invoke equitable jurisdiction ?

I'm guessing because they think they'd lose in a common law court, but I'm interested in any other answers.

[Dilan Esper]

Sometimes there's no legal remedy at all. For instance, quasi-contract, promissory estoppel, and quantum meruit. You don't have a legally enforceable contract, but you did things in reliance on the idea that you did. So you can get your money back, but you can't get full damages.

[Lee Moore]

You don’t have a legally enforceable contract, but you did things in reliance on the idea that you did.

Right, so you did things in reliance on the idea that you had a legally enforceable contract, but in fact you didn't have such a contract - meanwhile the other guy may well have been doing things in reliance on the idea - the correct idea - that you didn't have a legally enforceable contract.

So it's totally unfair on the other guy that the result gets flipped.

Or rather :

(i) it's not unfair if the particular equitable rule that is doing the flipping is well established - but then it isn't really an equitable rule in the sense of an extraordinary remedy to correct a flaw in the law, it's now just an ordinary rule that has become part of the law; or

(ii) it really is totally unfair and unreasonable and beastly and cruel that the law has come to this genuinely unexpected conclusion that no one foresaw, and which the other guy can't reasonably claim to have been relying on

So (i) is just formal frozen in time equity, which is really just a long standing legal rule that happened long ago to come from a slightly different direction from the common law. First time out it was a bizarro backflip by the judge, but now it's precedent and we're all expecting it. This is obviously not a justification of "equity" the magic wand that delivers fairness in extraordinary cases.

And (ii) positively screams - you better really have a stunningly good excuse for this novel backflip, so good that every man, woman and child, in the land, not to mention dog, is going to agree with it.

[Dilan Esper]

Right, so you did things in reliance on the idea that you had a legally enforceable contract, but in fact you didn’t have such a contract – meanwhile the other guy may well have been doing things in reliance on the idea – the correct idea – that you didn’t have a legally enforceable contract.

Usually its closer to "the guy on the other side knew you were acting in reliance, and indeed worked to induce that reliance, while keeping in his pocket the possibility of screwing you over later".

And (ii) positively screams – you better really have a stunningly good excuse for this novel backflip, so good that every man, woman and child, in the land, not to mention dog, is going to agree with it.

Tying into what I just said, one of the biggest reasons for equity jurisdiction is to have a fail-safe against douches who try and take advantage of the rigidity of legal rules to screw people. So it can't, itself, be rigidly bound by rules because that's exactly what the bad people use to take advantage of the situation.

And indeed, you can argue that part of what is going on in Texas is exactly that, with the Texas legislature taking the role of the douches.

[Gandydancer]

Nope. Since you've finally returned to US v TX, I will again repeat that SB8 doesn't evade anything. If it actually awards damages, costs or injunctive relief to a plaintiff before Casey is overturned then, if the TX courts fail to reverse, the Federal couts will properly have something to say about it. But if the TX courts follow SB8 properly that won't happen (absent a defendant deliberately losing by failing to raise a Casey defense -- SB8 should indeed not have been drafted so as to require the defendant to do so to get the benefit of his Federal immunity -- but that can be cured by a rewrite).

[Dilan Esper]

I understand that's the argument. And I take the point (argued in previous threads here) that there's no constitutional requirement that constitutional arguments be raised offensively instead of defensively.

But what you are ignoring is intent. There's a difference between statutes that have other purposes but incidentally make review more difficult, and an unconstitutional statute that is designed by a legislature to violate the Constitution while evading review. That latter situation screams out for equity.

[Gandydancer]

SB8 is designed to avoid review and an injunction against its enforcement. But it does so by remaning a virtual nullity until and unless Casey is overturned. Anybody can file, but no one can prevail. So it does NOT "violate the Constitution". There's no Constitutional right to not be fruitlessly sued. That can happen even if you HAVEN'T violated any law.

SB8's intent is to violate the Casey-declared understanding of the Constitution, but not until Casey is overturned and its application becomes Constitutional. Far from "screaming out for equity", there is no current need or justification for the Federal Courts to do anything. If the abortionists resume abortioning SB8 can do nothing to prevent them.

[Dilan Esper]

It violates the Constitution because it purports to make abortions illegal that are currently protected as a constitutional right under Casey.

And states have no constitutional power, or should have no constitutional power, to enact statutes with the intention of evading review. They can enact private attorney general statutes for other purposes, but not for that one.

[not guilty]

SB8 purports to authorize damage suits for conduct that was plainly constitutionally protected at the time of its occurrence. Even where a provider obtains judgment in his favor at or before trial based on Roe v. Wade and Planned Parenthood v. Casey, that judgment has no preclusive effect, and the provider is subject to additional suits by other plaintiffs again and again. SB8 requires a provider to govern his conduct not by fair warning of what is presently protected, but by speculation as to whether the law will change in the future.

How in the world does that statutory scheme comport with Due Process of law?

[Gandydancer]

@guiltyashell: SCOTUS has already ruled that indictment for an act committed while the ruling precedent declared it not a crime could proceed if that precedent was overruled by SCOTUS. This was in a 1984 case called US v Rodgers, written by Rehnquist.

[Gandydancer]

...by Rehnquist for a unanimous Court, btw.

Your misunderstanding of due process is not unexpected as whatever legal education you have seems to have been wasted on you.

[MatthewSlyfield]

As I understand it, SB8 doesn't completely evade review. It only evades pre-enforcement review.

I think it probably should be ruled against, if/when it properly comes before the courts for review.

However, I am put of from your position by the constant implication that the avoidance of pre-enforcement review means it will never get reviewed.

[Dilan Esper]

Deliberate avoidance of review.

For instance, the Tax Injunction Act is fully constitutional. But that's because the purpose isn't to evade review, but to ensure taxes are collected before the money is dissipated.

But where the purpose of the law is to evade constitutional review, that should be unconstitutional as lacking a rational basis, because there is no LEGITIMATE state interest in evading review.

[MatthewSlyfield]

No, it is not deliberate avoidance of any review, only avoidance of pre-enforcement review.

If/when you get around to acknowledging the difference, you might have a point.

[Dilan Esper]

Matthew:

Others in this thread have already explained why you are wrong. The statute also does things to prevent post-enforcement review.

And there's also the statements of the authors themselves.
They were trying to preclude any review.

[Lee Moore]

one of the biggest reasons for equity jurisdiction is to have a fail-safe against douches who try and take advantage of the rigidity of legal rules to screw people. So it can’t, itself, be rigidly bound by rules because that’s exactly what the bad people use to take advantage of the situation.

I think this is the essential point of difference. I am quite prepared to concede the existence of douches, and so - subject to the devil in the details - have no objection to statutory anti-douche rules,

eg where one party is big and huge and lawyered up and has an enormous long contract written in favor of itself (eg Google) and the other party is a humble human who doesn't have time to read all that crap - then fine let there be statutory overrides for unfair terms, and so on

I'm not against anti-douche rules. I'm just against judges inventing them after the fact.

[Dilan Esper]

In the real world, that would mean a lot of douches would win.

[Lee Moore]

An acceptable price to avoid something much worse - retroactive legislation from the bench.

Not a few of whom are pretty douche-adjacent themselves.

[Dilan Esper]

What you are calling "retroactive legislation" is our legal tradition that we inherited from England. It's not a bunch of judges making stuff up, but an iterative process where the law evolves and learns from experience.

[Bob from Ohio]

Its still a win, only the remedy is slightly different.

Equity has maxims/rules which purport to limit it but the only real limit is the judge's sense of "fairness". That's the whole reason it was invented back in England, the law was "unfair".

[DaivdBehar]

When the sole penalty was death, it was a bit too much to hang a person for picking fruit off a tree on the King's land. It is no longer necessary.

[Dilan Esper]

Here's the problem I have. I think it's a bit circular to say equity is bound to whatever equity traditionally did. Because the traditional role of equity included granting remedies when no legal remedy was available but the "equities" of the situation compelled a remedy. That WAS the traditional role of equity.

I DON'T think that means equity is unlimited. There are two traditional limits. The first one is that there has to be unavailability of a legal remedy. If there's an available legal remedy, there's no equity jurisdiction.

And the second is that the equities have to compel a remedy. This isn't jurisdictional. This is the merits issue of whether there's an equitable remedy. But this means that you can't just ask a court to make up any remedy in any case- you have to make a specific and strong showing that the Court must act because of the equities of the situation.

For instance, take the traditional equitable remedy of a preliminary injunction. There is equity jurisdiction because the first prong is met: the common law did not provide for a pre-trial injunction except in very specific and special circumstances. So you needed to go to the Chancellor to get it.

But on the merits, you can't just get a preliminary injunction because you ask for one. Rather, you have to meet all the requirements- irreparable harm, a probability of success on the merits, and the balance of hardships tilting your way. If a court issues you an injunction where those elements are not present, it's not a jurisdictional error but it is reversible on appeal as an abuse of discretion.

I don't see why there's any need to impose some artificial "traditional limits of equity" restriction on top of this. You aren't supposed to get equitable remedies if there are remedies at law, and you aren't supposed to get equitable remedies without strong showings that the equities tilt your way. Why isn't this enough?

[Gandydancer]

Pitman should lose b/c there is no need for his novel remedy. Any abortionist willing to rist that Casey will not be overturned can go right ahead and perform any Casey-legal abortion and SB8 will not result in him paying any damages.

[ReaderY]

It seems to me that Grupo Mexicano can be distinguished here. In the case, creditors had obtained a preliminary injunction preventing Grupo Mexicano from transferring certain assets (toll notes) to Mexican creditors so these assets would be preserved to satisfy a future money judgment in favor of the plaintiff creditors. Justice Scalia’s opinion had said that the equitable remedies avalilable to creditors were well settled by the cases of the British courts of Chancery, and precedent that the equitable remedy of a Creditors Bill, an injunction to restrain asset transfer pending satisfaction of a money judgment, could not issue until the courts had first established the creditors’ legal entitlement to the assets. When the Judiciary Act was passed, the courts of chancery had already specifically found that a preliminary injunction to restrain assets prior to a determination of entitlement was not an available remedy. The District Court in Grupo Mexicano was being asked to overturn a specific, well-established precedent. This, Justice Scalia held, federal courts could not do. Federal courts have to follow on-point equitable precedents. If it was clearly established a remedy isn’t available in equity in 1789, federal courts have to follow it.

Saying you can’t do something that was clearly established as unavailable in 1789 is obviously very different from saying you can’t do something unless it was established that it WAS available in 1789. Th two situations are very clearly distinguishble.

Accordingly, it seems to me that Grupo Mexicano could easily be interpreted as not bearing the load Texas is putting on it. Texas is not claiming that there is a precedent specifically saying that the type of equitable remedy that the United States is seeking is unavailable.

This is a different case.

[Dilan Esper]

Saying you can’t do something that was clearly established as unavailable in 1789 is obviously very different from saying you can’t do something unless it was established that it WAS available in 1789. Th two situations are very clearly distinguishble.

I agree with this. Especially since if you turn back the clock to 1787, a court of equity WOULD have been able to create an equitable remedy to fit a given case so long as there was no adequate remedy in law and no legal doctrine prohibiting the remedy.

[Gandydancer]

So, as long as it would never have occurred to anyone in 1789 that the Federal courts could enjoin State courts from hearing, or Clerks of the courts from accepting the filing of, cases under a duly enacted State law... well, that remedy is just hunky-dory then?

Not buying this.

[ReaderY]

No. When a jury says there’s a reasonable doubt that someone is guilty of murder, it isn’t certifying the person is a saint. Saying a maximal position is false is NOT saying the maximal position the other way is true.

In this case, Grupo Mexicano simply isn’t as limiting as Texas says it is. There might be other sources of limts. But new kinds of equity claims are not impossible under it. The claim made in Grupo Mexicano wasn’t actually new, it had previously been rejected.

[Gandydancer]

Pitman's remedy is unprecedented. Grupo Mexicano says "no" to that.

[Voize of Reazon]

if you turn back the clock to 1787, a court of equity WOULD have been able

If you turned back the clock to 1387 then I agree, but I'm not so sure that power survived the intervening 400 years. Equity began as an expression of the conscience of the King (that he rather quickly delegated to the Chancellor) but over the centuries, like law, it developed rules and became less of an open-ended exercise of discretion. Its major difference from law was that equity applied principles rather than hard-and-fast rules, and so could be expanded to new factual scenarios by interpretation of those principles, but that isn't the same as saying the court could still create an equitable remedy from whole cloth if it thought the remedy at law was inadequate.

[ReaderY]

Grupo Mexicano can be interpreted consistently with this principle as well. In Grupo Mexicano the creditors had a remedy at law, their damages claim.

What is the United States’ remedy at law in this case?

[Gandydancer]

The US has no claim for remedy to a nonexistent problem.

SB8 is Constitutional b/c, so long as Casey is law no penalties can be inflicted for Casey-compliant abortions.

[QuantumBoxCat]

In Grupo, Justice Scalia writes, "We have long held that “[t]he ‘jurisdiction’ thus conferred [by the Judiciary Act of 1789] . . . is an authority to administer in equity suits the principles of the system of judicial remedies which had been devised and was being administered by the English Court of Chancery at the time of the separation of the two countries.”

If this is correct, then the Supreme Court violated the Judiciary Act of 1789 when it crafted, under the authority granted to it by the act of May 8, 1792, equity rule 33 in February 1822 and equity rule 90 in March 1842. Rule 33 of 1822 states: "In all cases where the rules prescribed by this court, or by the Circuit Court, do not apply, the practice of the circuit courts shall be regulated by the practice of the High Court of Chancery in England." Equity rule 90, adopted March 2, 1842 - and in effect until 1912 - stated: "In all cases where the rules prescribed by this court or by the circuit court do not apply, the practice of the circuit court shall be regulated by the present practice of the High Court of Chancery in England, so far as the same may reasonably be applied, consistently with the local circumstances and the local conveniences of the district where the court is held, not as positive rules, but as furnishing just analogies to regulate the practice" (emphases added). Thus, in Thomson & Others v. Wooster 114 U.S. 104 (1884), Justice Bradley stated in a footnote (pg. 112) that the Court considered two particular equity practice books as "the most authoritative work on English Chancery Practice in use in March 1842, when our Equity Rules were adopted."

When I was reading through some of the cases cited by the majority in Grupo I did not see a single mention of the equity rules as they existed prior to 1912. This seems like a glaring omission though if one is trying to understand equity jurisprudence in the federal courts since the founding. As I see it, prior to 1912 the Court recognized equity practice as regulated by the English Chancery prior to March 1842, as per the rules it established. But now, the Court has changed course and ratcheted back the time-frame of English Chancery practice to 1789, claiming that this was established by the Judiciary Act of 1789.

Apparently, equity practice needs the rigidity of being frozen in time, but the time-window itself is quite flexible.

[Dilan Esper]

It's also worth noting that in 1822, there were people on the Court who had been around at the founding. So the framers of those Equity Rules might have known a lot more about the original understanding of the Judiciary Act than Scalia would have.

[MonitorsMost]

Professor Bray,
Thank you for these posts. It is helpful to having a jumping off point to understand the base dispute so that I can start looking at the relevant cases to form an opinion.

[ReaderY]

Justice Scalia hated standards and liked bright line rules. This might be a perfectly good olivy preference.

But standards are as much a part of the law as bright line rules. Equity is a good example of this. Getting rid of the standards aspect of equity because you don’t like standards on policy grounds is just as much an act of extra-constitutional judicial activism as, say, getting rid of abortion laws because you don’t like abortion laws on policy grounds.

In some cases, in some areas, judges really do get some leeway to craft solution. Allowing that leeway when permitted is just as important to judicial neutrality as not allowing it beyond its boundaries.

[The Turtle Dove]

Haven't been following this that closely, but conceptually, reaching the validity of the underlying cause of action has to pass through the "likely success on the merits" gate in the District Court's reasoning, hang a hard right at the circuit's review of the likely success of the movant at the district court (and where it's currently only an administrative stay, and only the interlocutory petition is docketed), and then relate back to the pre-circuit petition to the Supreme Court to substitute its judgment for that of the Circuit. A court is obliged to consider its subject matter jurisdiction at all times, but I'm not sure that the District Court's jurisdiction is in play at this point in the Jarndycean pavane.

Mr. D.

[not guilty]

The executive branch of the federal government is constitutionally mandated to take care that the laws be faithfully executed. U.S.Const. Art. II Sec. 3. "If the legislatures of the several states may at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.¨ Cooper v. Aaron, 358 U.S. 1, 18 (1958), quoting United States v. Peters, 5 Cranch 115, 9 U. S. 136. Supreme Court decisions ¨can neither be nullified openly and directly by state legislators or state executive or judicial officers nor nullified indirectly by them through evasive schemes . . . whether attempted ´ingeniously or ingenuously.´¨ Cooper, at 17, quoting Smith v. Texas, 311 U. S. 128, 311 U. S. 132. That is just as true of abortion rights today as it was of school desegregation in 1958.

The equitable cause of action for which the DOJ contends is not unfettered. Before the district court the United States offered three limiting principles to determine when the United States may bring a suit in equity to vindicate the rights of citizens: (1) a state law violates the constitution, (2) that state action has a widespread effect, and (3) the state law is designed to preclude review by the very people whose rights are violated. Judge Pitman seemingly agreed with these limiting principles, opining ¨The Court expresses no opinion as to whether there may be other considerations apparent in future cases that will call for further limiting the availability of equitable relief. However,under the circumstances
present here, it is substantially likely that the equitable cause of action has firm support, and the United States may seek an injunction against the State.¨

In light of the Texas legislature´s gamesmanship, it is appropriate for SCOTUS to grant certiorari before judgment in order to address definitively whether an equitable cause of action exists under the circumstances present at bar. It is further appropriate to dissolve the stay pending appeal in light of the irreperable injury to the United States interest in enforcing federal constitutional rights, as well as the interests of abortion providers and their patients in the unfettered exercise of constitutional rights.

[John F. Carr]

Has anybody involved in the case proposed a less drastic remedy than jailing every court clerk in Texas who stamps a filing "received" before checking it for SB8 contamination? Maybe waving the equity wand to get jurisdiction over the case then issuing a declaratory judgment. I have seen many cases where courts declined to issue injunctions against the government based on the notion that government officials would follow the law once they were reminded of it.

[CCP]

Interesting and timely series, on a topic I was actually wondering about when I first read the opinion and brief of the G.

A question out of admitted ignorance on my part: I get that equity is most commonly used to describe a form of judicial remedial power, but can also be a form of action. But in a common law and/or historical sense, as a "form of action", does it really make sense to say that the G (ie, the king) can avail itself of it? I thought that equitable jurisdiction and claims arose out of the fact that the courts of law (ie, the king's courts) couldn't provide a remedy. It may well be that I am all wet here, but someone at least tell me that my sense of irony is working.

[CCP]

Interesting and timely series, on a topic I was actually wondering about when I first read the opinion and brief of the G.

A question out of admitted ignorance on my part: I get that equity is most commonly used to describe a form of judicial remedial power, but can also be a form of action. But in a common law and/or historical sense, as a "form of action", does it really make sense to say that the G (ie, the king) can avail itself of it? I thought that equitable jurisdiction and claims arose out of the fact that the courts of law (ie, the king's courts) couldn't provide a remedy. It may well be that I am all wet here, but someone at least tell me that my sense of irony is working. At least in a federal system involving enumerated powers.