Traditional Equity and Contemporary Procedure

87 Pages Posted: 12 Sep 2003

See all articles by Thomas O. Main

Thomas O. Main

University of Nevada, Las Vegas, William S. Boyd School of Law

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

Suggested Citation

Main, Thomas O., Traditional Equity and Contemporary Procedure. Washington Law Review, Vol. 78, May 2003. Available at SSRN: https://ssrn.com/abstract=421320 or http://dx.doi.org/10.2139/ssrn.421320

Thomas O. Main (Contact Author)

University of Nevada, Las Vegas, William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States
702-895-2927 (Phone)
702-895-2482 (Fax)

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