Getting Into Equity

Those following United States v. Texas may be interested in a new paper that my colleague Paul Miller and I have just posted. It is called Getting Into Equity, and is forthcoming in the Notre Dame Law Review (as part of the federal courts symposium on the federal equity power).

Here is the abstract:

For two centuries, common lawyers have frequently talked about a "cause of action." But "cause of action" is not an organizing principle for equity. This Article shows how a plaintiff gets into equity, and it shows equity is shaped by the interplay of its remedial, procedural, and substantive law. Equity is adjectival, related to law rather than the other way around. Remedies, not rights, are what give it power. And for getting into equity, it is the grievance that is central. To insist on an equitable cause of action is to work a fundamental change in how a plaintiff gets into equity.

We also have this paragraph on United States v. Texas:

But even in those cases, such as United States v. Texas, the courts should not require a "cause of action" in equity, but they should consider the scope and intensity of the remedy in deciding whether there is equitable jurisdiction. One of the problems with asking whether there is a cause of action in equity is that it encourages a bifurcation between the "cause of action," which can be assessed and adjudicated first, and the "remedy," which can then be taken up. But equity does not know that bifurcation. There is a constant interplay between the question of whether the plaintiff should be in equity and the question of what the plaintiff wants from equity.