The Constitution as a Source of Remedial Law

Abstract

In Equity’s Constitutional Source, Owen W. Gallogly argues that Article III is the source of a constitutional default rule for equitable remedies—specifically, that Article III’s vesting of the “judicial Power” “in Equity” empowers federal courts to afford the remedies traditionally afforded by the English Court of Chancery at the time of the Founding, and to develop such remedies in an incremental fashion. This Response questions the current plausibility of locating such a default rule in Article III, since remedies having their source in Article III would be available in federal but not state courts and would apply to state-law claims as well as federal claims. Treating Article III as a source of remedial law would thus conflict with more recent decisions that have become canonical, including Erie Railroad v. Tompkins. Nonetheless, the evidence that Gallogly has amassed in support of the proposed default rule retains substantial current-day relevance. The challenge is to translate the Founders’ understanding to our current, very different legal universe. This Response defends a constitutional default rule on remedies, and a concomitant judicial power to develop such remedies, that is (a) binding on state as well as federal courts, and (b) applicable to remedies at law as well as remedies in equity, but (c) applicable only to claims based on federal law. As applied to equitable remedies, Gallogly’s constitutional default rule is largely consistent with the status quo. If extended to legal remedies, however, recognition of a constitutional default rule, and a concomitant judicial law-making power, would require a significant, and much needed, rethinking of the Court’s current approach.

Keywords: constitutional law, jurisprudence, article III, federal courts, founders, procedural law

JEL Classification: K00, K10