Treating Equity Like Law: A Post-Merger Justification of Unclean Hands
T. Leigh Anenson
University of Maryland - Robert H. Smith School of Business
American Business Law Journal, 2008
This article provides a fresh look at the adoption of unclean hands at law and offers an original theory that courts can convert into practical, doctrinal application. Specifically, it reconsiders the purpose of the procedural union and its unintended effect in court decisions that have either automatically included or excluded the defense in legal actions. It analyzes the overt and unconscious prejudice against the subordinate status of unclean hands in cases seeking legal remedies. It additionally documents the defense's recent absorption into the common law in certain courts. It not only examines these opposing rationales regarding the merger, but also reconciles them by proposing a new method to resolve the incorporation question. The compromise position suggests a case by case approach that is consonant with the text of the merger and the intent of the legislature. The article also provides policy reasons to consider the defense's universal use in law or equity cases. It builds upon Douglas Laycock's work showing that the labels "law" and "equity" have become obstacles to decisions instead of guides and argues for a common sense approach to the application of unclean hands that weighs its advantages and disadvantages in a particular case. The article concludes that courts should cease discriminating against the equitable defense of unclean hands and begin treating all equity like law.
Number of Pages in PDF File: 62
Keywords: unclean hands, clean hands, equitable defenses, equity
JEL Classification: K19, K40, K41, K49Accepted Paper Series
Date posted: September 10, 2007 ; Last revised: July 23, 2009
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