The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

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.