Judge-Made Equity

Abstract

For most of the nation’s history, federal courts in the United States adapted traditional equitable remedies to meet changing social, economic, and technological needs. Looking to both precedent and policy, federal courts used equitable remedies to break up labor strikes, desegregate public schools, redraw electoral maps, and prevent the enforcement of unconstitutional laws. This flexible approach to equity predates even the founding, having emerged first in England’s High Court of Chancery in the late seventeenth century.

Yet despite its pedigree, this approach no longer applies in federal court. Beginning at the turn of this century, in a series of decisions that scholars call the “new” equity cases, the Supreme Court has developed a new approach to equity that requires a specific historical antecedent—either in English equity practice in 1789, or in equity practice generally before federal equity’s merger with law in 1938—for any federal equitable remedy. But historically, courts never required such antecedents to validate the exercise of their equity powers. As a result, the Supreme Court’s turn to history in fact marks a major break from equity’s past.

This Article makes the case for a return to equity’s traditional, precedent-and-policy-driven method. It begins by exposing the Supreme Court’s historical approach as a departure from equity’s past—a fact that neither the Court nor existing scholarship has fully acknowledged. It then argues that neither history, nor text, nor policy supports Court’s departure. History favors judge-made equity, which existed for over three centuries before the Supreme Court displaced it in the early aughts. And although the sparse text of federal equity’s constitutional and statutory sources provides few clues, policy favors the old method as well. Judge-made equity allows courts to respond to complexity in litigation—and to prevent litigants from exploiting it. Driven by hostility to judge-made law, the Court’s new approach negates these benefits and ignores other safeguards, like Congress’s power to correct systemic abuses. The Court should abandon its talismanic use of equity’s history and return to equity’s traditional method—and, if the justices refuse, Congress should restore the status quo.

Keywords: equity, equitable remedies, living constitutionalism, ex parte young, universal injunctions