Equity, Property, and One View of the Cathedral

I've revised my short essay called Equity's Role in Defining Property Rights, and this passage might be relevant for readers interested in remedies, standing, and equity:

Critically, this protection of property rights is tailored, and it does not have to be just a reiteration of the property right in the form of an injunction. In other words, one should be careful not to think that an injunction is simply on all fours with the scope of the right in question. To the contrary, an equitable remedy may be phased in or phased out, expanded prophylactically, limited because of laches or unclean hands or undue hardship, or made conditional on acts to be taken by the plaintiff or defendant or both. And even after an injunction is issued, the court can come back and modify or dissolve it, without changing the underlying property right.

The most famous exposition of a contrary view, conceiving of the scope of an injunction as coextensive with a property right, is Professor Guido Calabresi and Douglas Melamed's One View of the Cathedral. That article is right to emphasize the protection of property with equitable remedies like the injunction. But the Cathedral's mistake is to ignore how the protection of property rights by equity is distinct from the definition of property rights. The scope of one does not have to be the scope of the other.

These property exceptions—these doctrines that equity will not do x, y, or z, except to protect property rights—serve multiple functions. One function is to channel equity's focus. Analogous to standing doctrine, they tie equity to something more concrete and specific, ensuring that the dispute can be put "on the map," so to speak.

If you want to read more, the essay is here. And the way equitable doctrines (like the requirement of a proprietary interest) can work analogously to standing doctrine is taken up in Debs and the Federal Equity Jurisdiction, coauthored with Professor Aditya Bamzai.

Comments

[Purple Martin]

Well, given the evidence of the last few months and irrespective of opinions on equity, property, or cathedrals, pretty certain I’d get a lot more out of reading anything by Professor Guido Calabresi than Professor Steven Calabresi.

[Theendoftheleft]

Bray, if you want to write about equity, why don't you do so here about the Frankenstein law that is NY's Executive Law 63(12) instead?

Are 63(12) actions CREDIBLY understood as truly equitable ones, especially when the state is the plaintiff AND where such an action is blended with penal law provisions?

What is the provenance of such ideas in equity (if any), i.e., the state as plaintiff, the state seeking and warranting the disgorgement monies? Do other states emulate this or have something comparable?

[Theendoftheleft]

You could build on your federal stuff on Debs and apply it to the state (and statutory) level.

[Dilan Esper]

Don't tell Brett Bellmore about equity.