'A Considerable Surgical Operation': Article III, Equity, and Judge-Made Law in the Federal Courts

Abstract:     
This Article examines the history of judge-made law in the federal courts through the lens of the early-nineteenth-century federal courts’ equity powers. In a series of equity cases, and in the Federal Equity Rules promulgated by the Court in 1822 and 1842, the Supreme Court vehemently insisted that lower federal courts employ a uniform corpus of nonstate equity principles with respect to procedure, remedies, and - in certain instances - primary rights and liabilities. Careful attention to the historical sources suggests that the uniform equity doctrine was not simply the product of an overreaching, consolidationist Supreme Court, but is best understood in the context of important and surprisingly underappreciated early-nineteenth-century debates concerning judicial reform. During this period, both Congress and the Court were preoccupied with the disuniformity in the administration of the federal judicial system, especially in the farther reaches of the republic. When reform was not forthcoming through legislation, the Supreme Court achieved a modicum of uniformity in the federal courts through the application of a single body of equity principles drawn from federal and English sources. But the Court did not act unilaterally. Congress’s repeated acquiescence to, and extension of, the Court’s uniform equity doctrine reveals a complex, interbranch dynamic at work. Retelling the story of nonstate, judge-made law in the federal courts through the lens of equity is not intended to demonstrate that such a formulation of federal judicial power was (or is) correct. Rather, by recuperating the history of federal equity power, this Article illuminates the significant metamorphosis of the meaning of Article III’s grant of judicial power. This change has been elided in modern accounts of federal judge-made law in an effort to bolster the legitimacy of a modern vision of federal judicial power.

Number of Pages in PDF File: 96

Keywords: Judge-made law, federal courts’ equity powers, federal courts, Federal Equity Rules of 1822 and 1842, history of federal equity power, Article III, nineteenth century federal courts, 19th century legal history

JEL Classification: K19, K39

Accepted Paper Series