Traditional Equity and Contemporary Procedure

Abstract:     
This Article offers extensive background on the development and eventual merger of the regimes of law and equity, and suggests that the procedural infrastructure of a unified system must be sufficiently elastic to accommodate the traditional jurisdiction of equity. As the Federal Rules of Civil Procedure become increasingly more elaborate and technical, strict application of those procedural rules can generate mischievous results and hardship. This Article suggests that equity remains a source of authority for district judges to avoid the application of a procedural rule when technical compliance would produce an inequitable result. A separate system of equity provided a forum for hardship created by the procedures of the common law system. Because the jurisdiction of equity was preserved by the procedural merger of law and equity, mischief and hardship created by the contemporary procedures of a unified system of law and equity need not be tolerated and may be corrected in a manner consistent with traditional principles of equity.

Keywords: Equity, Merger of Law and Equity, Legal History, Federal Rules of Civil Procedure

Accepted Paper Series