Samuel Bray, The Supreme Court and the New Equity, 68 Vanderbilt Law Review 997 (2015). Close only counts in horseshoes, hand-grenades, and the Supreme Court’s recent treatment of equitable remedies. So says Samuel Bray in ‘The Supreme Court and the New Equity’, where he defends fourteen Supreme Court decisions decided from 1999 to 2014 that are fraught with errors and frequently criticized, which Bray labels ‘the new equity cases’. The equity in these cases is ‘new’ in two ways. First, it maintains a clear distinction between equitable and legal remedies by entrenching the ‘irreparable injury rule’, or the requirement that there be no adequate remedy at a law before a judge consider equitable relief. Second, it seeks to control judicial discretion by adhering strictly to the history of equitable practice, and drawing from that history rules and multi-part tests to guide the application of equitable relief … (more)
[Wyatt Sassman, JOTWELL, 3 March]
First posted 2016-03-03 16:07:42
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