Functional Federal Equity

Abstract

Throughout history, English and American courts have adapted traditional equitable doctrines and remedies to new social, economic, and technological circumstances. This traditional approach to equity traces to England’s High Court of Chancery in the seventeenth century, and federal courts in the United States have applied it since the founding, fashioning new forms of equitable relief to break labor strikes, desegregate schools, redraw electoral maps, and prevent the enforcement of unconstitutional laws.

Yet despite its pedigree, the Supreme Court has abandoned this traditional approach to equity over the past two decades. Today, the Court limits federal courts to the doctrines and remedies that were available in historical courts of equity—either in 1789, at the time of the founding, or before 1938, when the Federal Rules of Civil Procedure merged law and equity in federal court. This new approach freezes equity in time, forbidding judge-driven change and leaving all future modifications to Congress.

This Article proposes an alternative to the Supreme Court’s approach, turning not to equity’s history but rather to its function. The traditional approach to equity that prevailed until the middle of the twentieth century is hard to square with modern-day skepticism of judge-made law. But as recent scholarship shows, equity still has a role to play in today’s legal systems, where it can counter bad-faith attempts to exploit the law’s generality and prospectivity. A better account of the federal equity power would permit federal courts to update traditional equitable doctrines and remedies, but only where needed to address these kinds of complex problems. Accordingly, while the federal courts should not treat their equity powers as an all-purpose remedial authority, they should use them to address problems like Texas’s S.B. 8, which the state designed specifically to circumvent the Constitution’s then-in-force protections for abortion.

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