Friday, May 30, 2014

Bray on the Supreme Court and the New Equity

Samuel Bray (UCLA) has posted The Supreme Court and the New Equity to SSRN.

The line between law and equity has largely faded away. The distinction between legal and equitable remedies has been a holdout, yet even there the conventional scholarly wisdom favors erasing the distinction. But something surprising has happened. In a series of cases over the last decade and a half, the U.S. Supreme Court has directly repudiated this conventional wisdom. These cases range across many areas of substantive law — from commercial contracts and ERISA to habeas and immigration, from patents and copyright to environmental law and national security. Throughout these disparate areas, the Court has consistently reinforced the line between legal and equitable remedies, and it has treated equitable remedies as having distinctive powers and limitations.

This Article describes and evaluates the Court’s new equity cases. Faced with many federal statutes authorizing equitable relief, the Court has looked to history and tradition to determine what counts as an equitable remedy and also to determine the circumstances in which equitable relief should be given. There have been some blunders, and the Court has glossed over the complexity of equity’s history. On the whole, however, the Court’s new equity cases represent a reasonable response to an enduring challenge — how to make sense of equitable doctrines in a world without equitable courts. This conclusion will prove controversial for scholars in remedies and in various substantive fields, but even those who disagree will need to grapple with the new equity cases, for they may shape the law of remedies for decades to come.

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