Equity's Federalism

38 Pages Posted: 27 Jun 2022

See all articles by Kellen Funk

Kellen Funk

Columbia University - Law School

Date Written: June 20, 2022

Abstract

The United States has had a dual court system since its founding. One might expect such a pronouncement to refer to the division between state and federal courts, but in the early republic the equally obvious referent would have been to the division between courts of common law and the court of chancery—the distinction, that is, between law and equity. This Essay sketches a history of how the distinction between law and equity was gradually transformed into a doctrine of federalism by the Supreme Court. Congress’s earliest legislation jealously guarded federal equity against fusion with common law at either the state or federal levels. The antebellum Supreme Court obligingly adopted a strongly anti-fusion stance and took pains to protect federal equity from experimental state-level reforms. In the midst of Reconstruction, Congress reconfigured the ways federal equity would intermix with state law and legal process. But in the twentieth century, Supreme Court doctrine set aside the well-documented legislative history of Reconstruction statutes in favor of a mythic retelling of the 1790s that reduced equity to a principle of federalism. This judicially invented historical narrative has led to a peculiar asymmetry in practice today, where it has become surprisingly easy for federal courts to equitably restrain the other federal branches but significantly difficult for them to redress even extreme violations of federal rights at the state and local level.

Keywords: legal history, law and equity, civil rights, injunction, Supreme Court

JEL Classification: K41

Suggested Citation

Funk, Kellen, Equity's Federalism (June 20, 2022). Notre Dame Law Review, Vol. 97, No. 5, 2022, Available at SSRN: https://ssrn.com/abstract=4145011

Kellen Funk (Contact Author)

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10009

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