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The Supreme Court and the New Equity

Posted by on Friday, May 15, 2015 in Articles, Volume 68, Number 4.

The Supreme Court and the New Equity


The line between law and equity has largely faded away. Even in remedies, where the line persists, the conventional scholarly wisdom favors erasing it. Yet something surprising has happened. In a series of cases over the last decade and a half, the U.S. Supreme Court has acted directly contrary to this conventional wisdom. These cases range across many areas of substantive law—from commercial contracts and employee benefits 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 begins to evaluate 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 taken no account of 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.


Assistant Professor of Law, UCLA School of Law. Thanks for comments are due to Stuart Banner, Will Baude, Jud Campbell, Nathan Chapman, Michael Coenen, Thomas Cotter, Marc DeGirolami, Ingrid Eagly, John Golden, Tomás Gómez-Arostegui, James Grimmelmann, Ranjit Hakim, Erin Morrow Hawley, Laura Kalman, Michael Kenneally, John Langbein, Douglas Laycock, Michael McConnell, Stephen Munzer, Grant Nelson, Jason Oh, Doug Rendleman, David Schoenbrod, Joanna Schwartz, Seana Shiffrin, Debora Shuger, Henry Smith, Clyde Spillenger, Jon Varat, Eugene Volokh, David Waddilove, Stephen Yeazell, and participants in the University of San Diego Faculty Workshop, the UCLA Faculty Workshop, the SoCal Juniors Workshop, and the Junior Faculty Federal Courts Workshop at the University of Georgia. I am grateful for the research assistance of Bryan Beth.