Equity Is Controversial

Here's a paragraph from a soon-to-be published chapter on the "equity will not" doctrines--doctrines like equity will not enjoin a crime, equity will not enjoin a criminal proceeding, equity will not punish, equity will not enjoin a libel, and equity will not protect a political right.

Equity has always been controversial. In the United States, it was controversial at the Founding, at the time of the labor injunctions, at the time of the civil rights structural injunctions, and now at the time of national injunctions. Precisely because of its extraordinary powers, and its greater reliance on discretionary considerations, equity has tended to be the most pro- and the most anti-Bickelian part of the common law systems. Equity is where American judges are most likely to overshoot, risking blowback from political actors and institutions, and it is also where those judges have tended to use the readily available brakes to avoid overshooting.

If you want to read more, here's the chapter.

Comments

[Currentsitguy]

Equity is the diametric opposite of equality, which is why I categorically reject the very concept.

[M L]

I don't think that's the kind of equity he is talking about.

[Magister]

Home equity is good. We should have more inclusion of diverse definitions of equity, or else more diversity in included definitions of equity.

[Drewski]

That's funny, because I specifically recall you writing in favor of courts making use of equity, such as when they've enjoined Biden's policies. Mind you, I don't think you're hypocritical, just too stupid to know when you're talking about things you don't understand and too lazy to read articles and gain knowledge.

[Brandon Berg]

"Equity" as a term of art in law has nothing to do with DEI and related nonsense. Equity law is a part of the legal system that predates the American Revolution.

[M L]

OK . . . But should equitable remedies be carved out from an indemnification exclusivity of remedies provision in an acquisition purchase agreement?

[mydisplayname]

The chapter's closing metaphor is a good one which should (but may not) prompt discussion. The game of musical chairs is challenging, but doesn't compel each participant to understand the lyrics and appreciate the melody of the fragmented pieces used in the contest. Nor does the game require discernment of nuances and comprehension of context: hearing Pomp and Circumstance March #4 at commencement, usually played from a track of _A Clockwork Orange_, typically prompts no thought of of Shakespeare, Elgar, Burgess, or Kubrick -- and no thought of the concepts each attempted to convey. But the game is enjoyable, nonetheless. https://www.youtube.com/watch?v=ezMld3tavi0