The Nature of Things

Abstract

Abstract This chapter examines the wide-ranging debates over the fusion of law and equity and whether such fusion could be accomplished through a procedure code. After describing the central themes of the fusion debate in the New York Constitutional Convention of 1846, the chapter traces David Dudley Field’s ideas about fusion in the litigation strategy Field undertook in the “Erie Wars.” The Erie Railroad litigation shows how fully equity—especially in its provisional remedies—did not inhere in articulable principles of substantive law but in chancery’s traditional power to change the game of litigation without changing the conventional rules. After attempting to reduce equity to a list of procedures and remedies on a page, Field showed how greatly those remedies had depended on traditional structures of uncodified thought to keep them within practical bounds, especially the bounds of conscience. The fusion of law and equity was a joint project across the common law world in the nineteenth century. In general, one might say that Field Code states sought to accomplish fusion largely through equity’s diffusion. Under the code, every trial judge became a chancellor, and every case was a potential application of equitable remedies. Yet throughout the code, both initially and as finalized by the commissioners, rights to specific remedies and modes of proceeding depended on the form of the complaint, which in turn depended on the remedy sought, which in turn depended on the traditions distinguishing legal from equitable relief.