The System of Equitable Remedies

Abstract

The conventional wisdom is that the distinction between legal and equitable remedies is outmoded and serves no purpose. This Article challenges that view. It argues that the equitable remedies and remedy-related doctrines that presently exist in American law can be understood as a system. The components of the system fall into three categories: (1) the equitable remedies themselves, (2) equitable managerial devices, and (3) equitable constraints. These components interact subtly and pervasively. Together, they make the equitable remedies apt for compelling action (or inaction), especially when the action may be continuing or iterative and is not easily measured. The system of equitable remedies is a useful and integrated whole.

This argument offers some support for an emerging body of Supreme Court cases that have sharply distinguished between legal and equitable remedies — cases such as Great-West Life & Annuity Ins. Co. v. Knudson, eBay v. MercExchange, and Petrella v. MGM. Moreover, this argument helps explain why there has been so little merger between law and equity in remedies, even as merger has occurred in other aspects of American law. Finally, this argument offers a new perspective on the requirement that a plaintiff, in order to receive an equitable remedy, must show that legal remedies are inadequate. That requirement helps maintain the system of equitable remedies.

Keywords: remedies, equity, equitable remedies, injunctions, specific performance, constructive trust, accounting for profits, laches, unclean hands, irreparable injury, no adequate remedy at law, jury, modification and dissolution, contempt, declaratory judgment, mandamus, habeas

JEL Classification: K40, K41, K42