History Of Equity Research Articles

National Injunctions and Preclusion

Critics of national injunctions are lining up. Attorney General Jeff Sessions labeled these injunctions “absurd” and “simply unsustainable.” Justice Clarence Thomas called them “legally and historically dubious,” while Justice Neil Gorsuch mockingly referred to them as “cosmic injunctions.” Scholars in leading law reviews have called for their demise. Critics argue that national injunctions encourage forum shopping, unfairly burden the federal government, and depart from the history of equity. They also claim that national injunctions contradict the Supreme Court’s decision in United States v. Mendoza to exempt the federal government from offensive nonmutual issue preclusion—a doctrine that permits nonparties to benefit from a prior finding against a party from an earlier case. Critics are right to identify the connection between national injunctions and nonmutual preclusion. Both of these doctrines describe when judgments can benefit nonparties. But critics are wrong to see Mendoza as an argument against national injunctions. For one thing, the rise of nonmutual preclusion that prompted Mendoza undercuts crucial arguments against national injunctions by offering an alternative explanation for the absence of analogous injunctions in the history of equity. For another, Mendoza was not preordained; instead, it was a highly policy-driven decision. And Mendoza’s policy arguments were dubious when it was decided and even more dubious today. Scrutinizing these arguments should make us less comfortable in extending Mendoza to a new context—as the Supreme Court may be poised to do. Indeed, this Article goes one step further. The Supreme Court or Congress should take advantage of the attention on nonparty relief to reconsider, and overrule, Mendoza. Federal-government litigants do not deserve special treatment with respect to preclusion in every case, and the existing rules of preclusion adequately protect the interests purportedly at stake in Mendoza. Moreover, rejecting Mendoza has feedback effects for the national-injunctions debate. Overruling Mendoza would not only reduce the need for national injunctions (because preclusion could do some of the work) but also provide a framework for limiting national injunctions without eliminating them completely. This is especially important given recent decisions that make relying on class actions a tenuous response. More generally, overruling Mendoza would create a system that is fairer to governmental and nongovernmental litigants alike while reaffirming each branch’s role in the making of national policy.

Now Is the Winter of Ginsburg's Dissent: Unifying the Circuit Split As to Preliminary Injunctions and Establishing a Sliding Scale Test

The preliminary injunction is an equitable remedy that may be granted to prevent harm to a movant before adjudication on the merits can be reached. The Supreme Court most recently iterated the four factors a court must consider for a preliminary injunction to issue in Winter v. National Resource Defense Counsel. A movant seeking a preliminary injunction must establish that the movant is likely to succeed on the merits; that the movant is likely to suffer irreparable harm in the absence of preliminary relief; that the balance of equities tips in the movant’s favor; and that an injunction is in the public interest. Federal Circuits have long been split over how to apply these factors and what kind of test these factors create. Following Winter, there is still no consensus. The Circuits apply three different tests to preliminary injunction questions: the Sequential Test, the Sliding Scale Test, and the Gateway Factor Test. Circuits that apply the Sequential Test require a movant to prove each of the four factors in turn, and a failure to prove one factor bars injunctive relief. Circuits that apply the Sliding Scale Test balance all four factors, and a higher showing on one factor can make up for a lesser showing on another factor. Circuits that apply the Gateway Factor Test require movants to demonstrate a likelihood of success on the merits and a likelihood of suffering irreparable harm in the absence of preliminary relief before addressing the remaining two elements. Under this approach the first two factors are dispositive. This article argues that the Sliding Scale Test is the most appropriate test when determining whether to issue a preliminary injunction. The history of equity in the United States supports this assertion. Further, the Supreme Court has historically endorsed the Sliding Scale Test.

Multiple Chancellors: Reforming the National Injunction

In several recent high-profile cases, federal district judges have issued injunctions that apply across the nation, controlling the defendants’ behavior with respect to non-parties. This Article offers a new analysis of the scope of injunctions to restrain the enforcement of a federal statute or regulation. It makes two contributions.First, it shows the causes of the current problem. The national injunction is a recent development in the history of equity, traceable to the second half of the twentieth century. But the forum-shopping and other problems associated with the national injunction depend on something older and more structural: the shift from one chancellor in England to many “chancellors” in the federal courts.Second, this Article proposes a single clear principle for the scope of injunctions against federal defendants. A federal court should give what might be called a “plaintiff-protective injunction,” enjoining the defendant’s conduct only with respect to the plaintiff. No matter how important the question and no matter how important the value of uniformity, a federal court should not award a national injunction. The basis for this principle is traditional equity, in line with the rule that the federal courts must trace their equitable doctrines to that source. To put this principle into practice, several specific reforms are suggested, ones that the Supreme Court could adopt through an exercise of its supervisory jurisdiction.

Principles of Equity and Contracts

English law before the introduction of the principle of equity was mainly governed by Common Law (Commune Ley). Blackstone defined Common Law as the municipal law of England or the rule of civil conduct prescribed to the inhabitants of the kingdom. But this system of common law had certain flaws as it did not provide for any remedy in many cases where one was required. This thus paved the requirement for the emergence of the principles of equity and the decisions were given in good conscience. Equity which means equalization or leveling down any arbitrary preferences or denial of justice is derived from a Roman term 'aequitas'. According to Sir Henry Mane, equity is fresh body of rules by the side of the original founded on distinct principles and claiming to supercede the law by virtue of a superior sanctity inherent in those principles. Equity is aimed at preventing a defendant from acting unconscionably (literally, contrary to conscience) in circumstances otherwise where the common law would have allowed to do so. In layman's language it can be said to interfering to protect some underlying right of the victim either because of a contract with the shyster, or because the shyster has control over some property which is rightfully theirs or because one may feel that the actions of the shyster may affect the victim in the future in some way or the other. Though equity was faced with conflict with the laws in England in the earlier stages, it always had always played a major role in the Law of Contracts. Equity in contracts can be seen in the fields of restitution, unjust enrichment, mistake and estoppel. In the subsequent chapters the researcher intends to analyze the role of the Principle of Equity in Contracts. The researcher would like to look into the nature of equity to bring about a relationship between equity and contracts. One must also understand the doctrine of Specific Performance would also be looked into as it is major area in the case of Contracts where equity plays a significant role. The researcher would look into the Contracts where Specific Performance is available and those where it is not available. Though this project aims to cover most of the field areas under the abovementioned topic it has certain limitations. The researcher during his research would not concentrate on the history of equity and its origin. It would concentrate majorly on mistake, unjust enrichment and Specific Performance. He would not go into a great depth and analyze the equity in the Indian Contract Act. Neither would he look into the issue of Quasi-Contracts which include the principles of equity in it. As this is mostly a critical analysis the researcher would not like to venture much into the Indian cases rather he would look mostly into the English Law to analyze this relationship. The researcher would also like to point out the fact that the topics that he would be covering are in themselves a separate area where extensive research has been done on. Given the time and space restraint the researcher would be unable to cover all these areas to the extent they have been discussed in by various jurists. The researcher would give a sincere effort in order to explain to its readers the importance of the Principle of equity in Contract Law and apologizes for any unintended error that may be caused the course of this project. HYPOTHESIS The researcher intends to provide the readers with a critical analysis of the Principles of Equity and their application in the Law of Contracts. The researcher does feel that the Contract law which have certain loopholes and their advantage are taken by a certain party whereas the other suffers. The researcher thus hypothesizes that the Contract Law would have been insufficient if these principles were not applied.

Concealing the Past?: Questioning Textbook Interpretations of the History of Equity and Trusts

This article argues that legal academics and their students should be encouraged to question the unacknowledged ideological assumptions and overall interpretative orientations upon which the “history” of the legal doctrine of equity and trusts is presented by standard law textbooks. Once these assumptions are questioned, it is possible to identify a series of difficulties and contradictions stemming from the failure of these standard “monumental” textbook accounts to transcend a series of unacknowledged presuppositions, including a commitment to an internal, linear model of historical development. Applying this underlying model generates an ideologically affirmative and one-sided account of not only the evolution of equity but also the present operation of this area of law. There is, therefore, a pressing need to uncover and challenge the basis upon which the selective constitution and presentation to students of such “history” takes place, particularly the deception involved in passing off a selective interpretation as if it represented a disinterested, politically neutral and value-free description of self-evident “facts” about the evolution of property law. This overall argument regarding the ideological nature of such historical narratives is illustrated with reference to the textbook analysis of both strict settlements, and in terms of its provision of a resource for attacking recent judicial innovations.

The Law's Conscience: Equitable Constitutionalism in America.

The Law's Conscience is a history of equity in Anglo-American juris-prudence from the inception of the chancellor's court in medieval England to the recent civil rights and affirmative action decisions of the United States Supreme Court. Peter Hoffer argues that equity embodies a way of looking at law, including constitutions, based on ideas of mutual fairness, public trusteeship, and equal protection. His central theme is the tension between the ideal of equity and the actual availability of equitable remedies. Hoffer examines this tension in the trusteeship constitutionalism of John Locke and Thomas Jefferson; the incorporation of equity in the first American constitutions; the antebellum controversy over slavery; the fortunes of the Freedmen's Bureau after the Civil War; the emergence of the doctrine of Balance of Equity in twentieth-century public-interest law; and the desegregation and reverse discrimination cases of the past thirty-five years. Brown v. Board of Education (1954) was the most important equity suit in American history, and Hoffer begins and ends his book with a new interpretation of its lessons.

An Introduction to the History of Equity and Its Courts

An Introduction to the History of Equity and Its Courts

The Early History of Equity

The Early History of Equity