Samuel L Bray and Paul Miller, ‘Getting Into Equity’, 97 Notre Dame Law Review (forthcoming, 2022), available at SSRN. I write to offer three cheers for ‘Getting Into Equity’, a rumination on the distinctive manner in which litigants invoke law and equity. To get into law, the authors explain, one asserts a cause of action, rooted in a Roman law conception of redress for a violation of one’s rights. To get into equity, the suitor provides a narrative account of a grievance that raises an equity in her favor. Equity may act in relatively predictable ways, but it remains fundamentally discretionary in the hands of judges or chancellors who have been asked to correct an injustice. The authors persuasively argue that the distinction has survived (if barely) the fusion of law and equity in the Federal Rules of Civil Procedure … (more)
[James E Pfander, JOTWELL, 4 November]
First posted 2021-11-05 12:00:19
Leave a Reply