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.

Comments

[Dan Schiavetta]

Local v. Terry: whether a claim is in equity or at law, for the purposes of the 7A right to a jury trial, should depend on the remedy only. (Brennan, J., dissenting)

[Sarcastr0]

I never learned much about equity in law school, but I do hate this. It reminds me of the old special pleading rules.

No, I myself love complicated procedures. But not everyone does. You shouldn't get bounced out for not having a degree in the policy, doctrine, and rituals of equity.

[rsteinmetz]

Am I the only person's whose first take on the title of the is the current progressive fetish for equity, diversity and inclusion?

[bernard11]

My first take was that it was a primer on investing in the stock market.

[Commenter_XY]

LOL....nice one.

[JimM47]

In my experience, the funny thing about equity is that a person can intuitively understand it without necessarily being able to articulate that understanding.

The great thing about Professor Bray's posts is that I very often read them and say "oh, what he is saying conforms with something I am writing, but reading this has helped me to articulate it better."

It's a useful thing even if what I am working on is never some big or important issue.

[Cal Cetín]

OK, but how do you get out again?

[Jimmy the Dane]

We are post-anyone-with-principles-cares. After three generations of ends justify the means from the left, that is the only deal left with politics. Equity matters only if it stops Texas. Apply the same principle to say the Second Amendment and all the sudden equity doesn't matter anymore.

Hope you are happy lefties that you got us to this juncture. I don't think you are going to be happy with the results though. Do you think all those social justice warriors with X's on their passports are going to come save you when the time comes?

[LawTalkingGuy]

Save us from what?

[Jimmy the Dane]

Probably making you have to something dastardly like identifying as either a man or woman.

[Sarcastr0]

Awww, caught in vague intimations of future violence again.

[Jimmy the Dane]

Better than you getting caught being pro-rape.

[Ridgeway]

" 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."

Doesn't this overlook the "redressability" requirement of the standing doctrine, at least in Federal court? Regardless of whether a claim is legal or equitable, the court always needs to determine if it has the ability to remedy the alleged wrong.