Samuel Bray, ‘The System of Equitable Remedies’

The conventional wisdom is that the distinction between legal and equitable remedies is outmoded and serves no purpose. This Article challenges that view. It argues that the existing equitable remedies and remedy-related doctrines can be seen as a system. The components of this system fall into three categories: (1) equitable remedies, (2) equitable managerial devices, and (3) equitable constraints. The components of the system work together. Together they are especially suited to circumstances in which a court must compel action or inaction in a way that is open-ended and adverbial. The consequence is that the distinction between legal and equitable remedies is not only more pervasive than we thought, but also more rational than we thought.

This argument supports an emerging body of Supreme Court cases that have maintained the distinction between legal and equitable remedies – cases such as Great-West Life and Annuity Ins Co v Knudson, eBay v MercExchange, and Petrella v MGM. This argument also helps explain why there has been so little merger between law and equity in remedies, even as merger has happened in many other aspects of American law. Finally, this argument offers a new perspective on the requirement that a plaintiff, in order to receive an equitable remedy, must first show that there is no adequate remedy at law. The adequacy requirement forces courts to classify remedies as legal or equitable, and that very act of classification helps maintain the useful system of equitable remedies.

Bray, Samuel L, The System of Equitable Remedies (June 24, 2015). UCLA Law Review, forthcoming.

First posted 2015-06-25 05:29:21

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