Monthly Archives: June 2016

Justifying the Law-Equity Divide

Samuel Bray, The System of Equitable Remedies, 63 UCLA L. Rev. 530 (2016).

The division between law and equity has a long and important history in Anglo-American jurisprudence, and one whose effects continue to resonate in American courts to this day. Indeed, whenever I teach remedies, I tell my students that this is an area of law where history still matters—that if they want to understand the difference between legal and equitable remedies, and to know the types of remedies that their clients might be entitled to in a given case, they need to be at least somewhat familiar with the history of the contest between the English courts of law and the Court of Chancery, which was responsible for developing and administering the rules of equity. Why? Because it was the battle over jurisdictional turf that took place between these courts hundreds of years ago that gave rise to a rule (i.e., the irreparable injury rule) that still operates whenever judges are called upon to decide whether an aggrieved party is entitled to an equitable remedy. Specifically, the irreparable injury rule requires that an aggrieved party seeking an equitable remedy (e.g., specific performance of a contract) must show that there is no adequate legal remedy (e.g., money damages) to put it in the position it would have occupied had the wrongdoer not committed its wrong (e.g., breach of contract).

Apart from this history, however, one wonders whether the irreparable injury rule (specifically), or the division between legal and equitable remedies (more generally), can be justified along more functional lines. Many commentators believe that it cannot. Professor Douglas Laycock, for instance, in strong and colorful language, has argued that “[a] rule designed to preserve the jurisdictional boundaries between two courts that have long been merged should die unless it serves some modern purpose.”1 In fact, Laycock has even claimed that the rule is largely dead, being more honored in the breach than in the observance.2 But if this is true, one may ask (as my students sometimes do), why do professors still teach the irreparable injury rule, and why do courts still invoke it whenever a plaintiff seeks an equitable remedy? And, perhaps more importantly, since courts of law and equity have long been merged in most jurisdictions, what justification (outside of tradition) can there be for continuing to distinguish between legal and equitable remedies in such a manner? It is in providing an answer to these tough and persistent questions that Samuel Bray’s article, The System of Equitable Remedies, makes an important contribution to the field. Continue reading "Justifying the Law-Equity Divide"

Staying Power of Equity

Samuel L. Bray, The System of Equitable Remedies, 63 UCLA L. Rev. 530 (2016).

Let equity lure you with its sirens. Equity, first developed by the Court of Chancery, is vital to the law of remedies. It affects a range of rights, remedies, and defenses from public to private disputes. It cannot be forgotten, ignored, or fully merged. The trend, however, is to streamline equity. For example, Douglas Laycock has argued we should move beyond the law-equity divide, and Doug Rendleman has advocated fusion and functionalism for reasons that I separately have acknowledged: equity generates friction and confusion, especially regarding restitution and unjust enrichment. Sam Bray’s The System of Equitable Remedies refutes this movement. Bray instead argues that equity remains distinct from law and comprises its own system that is pervasive, rational, and useful.

I agree: equity is alive and well in America. It is not simply federal and state constitutional rights to jury trials keeping the divide relevant. Federal and state courts keep equity in play in statutory and common-law cases—from ERISA to contracts, environmental law to trade secrets, and beyond. Equity soldiers on, despite law schools’ dropping the Equity course and despite the merger of law and equity in almost all courts and the Rules of Civil Procedure. Complete merger remains elusive. Where law fails or falls short, the pull of equity is greatest. Equitable remedies are key where money substitutes provide inadequate protection. Bray bluntly states the need: “There must be some way for courts to compel action or non-action.” Overall, Bray’s work requires readers to stop and think before dismantling the distinct system of equity. Continue reading "Staying Power of Equity"

Don’t Delegate This Reading

James R. Hines Jr. & Kyle D. Logue, Delegating Tax, 114 Mich. L. Review 235 (2015).

In modern regulatory states, the theoretically firm lines dividing the legislative, executive, and judicial branches of government are increasingly blurred. Teasing out how to design and enforce effective regulation has become a major preoccupation of scholars and policymakers in every area of law.

Delegating Tax, an article by the talented James R. Hines Jr. and Kyle D. Logue, is wonderful reading in that light. The article contrasts the reluctance of Congress to delegate the lawmaking authority of the IRS and Treasury in the tax area with Congress’ increasing willingness to delegate that authority to other federal administrative agencies. The authors make the case for great delegation in the tax area, noting the potential for the executive branch to draw on greater expertise and to respond more quickly. Continue reading "Don’t Delegate This Reading"

Linguistic Theory, Gender Schemas and Wills

Karen Sneddon, Not Your Mother’s Will: Gender, Language, and Wills, 98 Marq. L. Rev. 1535 (2015).

Language matters. In her recent article, Not Your Mother’s Will: Gender, Language, and Wills, Karen Sneddon details just how much language matters in the context of wills and trusts. In a comprehensive review of linguistic theory and its intersection with inheritance law, Sneddon illuminates how will clauses and trust structures reflect gender schemas about men and women.

Sneddon first lays a foundation for her hypothesis that will drafting reflects masculine and feminine roles and norms by acquainting the reader with basic linguistic theory. She notes that wills are one of the most personal and oldest forms of legal writing. Sneddon goes on to introduce the concept of androcentrism as a driver of language-based gender norms. Phrases that focus on men as the typical and women as the atypical mirror what Sneddon describes as the remnants of patrimony. Cultures perform and reproduce gender through language. Using terms like “executor” and “executrix” implies that the latter is the less important variation on the central role. Interestingly, Sneddon asserts that prior to the nineteenth century there were fewer gender distinctions in language and actually more female executors. She suggests that the rise of Victorian ideals relating to the delicate nature of womanhood may have contributed to this shift away from women performing such public duties and that the increase in the gendered form “executrix” reflects those societal changes. Continue reading "Linguistic Theory, Gender Schemas and Wills"

The Art of Promise and Power of Contract

Dori Kimel, Promise, Contract, Personal Autonomy, and the Freedom to Change One’s Mind, in Philosophical Foundations of Contract Law 96 (Klass, Letsas & Saprai eds., 2015).

For philosophers of private law, a central puzzle is to explain how people’s voluntary acts of promising and contracting can produce genuine obligations. One popular class of answers points to personal autonomy—or the capacity, real or hypothetical, to bind one’s will through free acts of self-legislation. For those who believe in personal autonomy and its value, there may seem to be relatively few puzzles about promise or contract. Indeed, promise and contract might seem to offer easy cases.

These initial impressions can, however, be misleading. Whether promise and contract can be grounded in concern for personal autonomy will ultimately depend on what personal autonomy is, why it is valuable, and how promise and contract work. While autonomy-based accounts of promise and contract have proven enormously popular in the legal literature, this popularity has not always been matched by sufficiently close attention to these foundational questions. One of the things I appreciate most about Dori Kimel’s work in Personal Autonomy and Change of Mind in Promise and Contract is that he offers an uncommonly rich description of personal autonomy and its value. Rather than exaggerating the ease with which personal autonomy can be used to explain various details of promise and contract, Kimel faces the difficulties head on. Continue reading "The Art of Promise and Power of Contract"

The Turn to Procedure

Daniel Ernst’s book, Tocqueville’s Nightmare: The Administrative State in America, is a significant addition to the growing literature on the history of the administrative state. However, it also compels a rethinking of the received historiography of twentieth century American legal thought. It is to the latter contribution that I will devote this brief review.

When Alexis de Tocqueville visited the United States in the 1830s, he observed that the country—in contrast to the states of continental Europe–had very little in the way of centralized bureaucracy. This, for Tocqueville, was a good thing: powerful centralized bureaucracies threatened a significant abridgment of democracy in a country as diverse and spread out as the United States. The “Tocqueville’s nightmare” of Ernst’s title refers, then, to the situation in which too much power might become vested in the hands of bureaucrats unanswerable to the people. Continue reading "The Turn to Procedure"

Copyright’s Interpretive Turn

Zahr Said, Reforming Copyright Interpretation, 28 Harv. J. of L. & Tech. 469 (2015).

Zahr Said’s Reforming Copyright Interpretation puts its finger on an important, yet little studied, aspect of copyright law: judicial interpretation. It pushes the ball quite a bit by providing a descriptive taxonomy of courts’ interpretive approaches in copyright law, advancing and defending an interpretive approach that it considers best overall, and applying and exemplifying its framework and arguments with a good number of cases while situating it all within a larger body of law and literature scholarship. For me, that’s tons of progress in one article, and the reason why I like it lots.

In resolving copyright disputes, judges must make interpretive decisions. Decisions regarding interpretation are often outcome-relevant – for example, when they lead a judge to decide whether an issue is a matter of law or fact or whether expert testimony may be admitted or not. These decisions can also be outcome-determinative – for example, when a judge makes an interpretive decision that resolves a case on summary judgment or finds an allegedly infringing use to be fair. The interpretive judgment that these decisions involve often flies under readers’ radars. Said draws our attention to judges’ interpretive choices and to the systemic effect that they have, or could have if they were to be conducted appropriately, on copyright law. Continue reading "Copyright’s Interpretive Turn"

Health Insurance as Innovation Incentive

Rachel Sachs, Prizing Insurance: Prescription Drug Insurance as Innovation Incentive, 30 Harv. J. of L. and Tech. (forthcoming 2016), available at SSRN.

In Prizing Insurance: Prescription Drug Insurance as Innovation Incentive, Rachel Sachs brings together the often disparate worlds of intellectual property theory and health insurance design, to argue that prescription drug insurance could be structured to offer a better incentive for pharmaceutical companies to develop drugs that treat conditions primarily affecting low-income Americans. Typically, health insurance design is evaluated from an access and utilization perspective. Professor Sachs suggests we should broaden that view, at least when it comes to drug coverage, to evaluate the effect insurance coverage has on research and development incentives.

To make her point, Professor Sachs works through the example of the innovation incentives for drugs that would be primarily prescribed to low-income populations in the U.S., such as those that would treat various tropical diseases. While there are many factors that influence the development of drugs, one of those incentives is financial. And when it comes to diseases that affect primarily low-income individuals, the financial analysis disfavors significant innovation investment. After all, if the population to be treated is either uninsured or covered through only Medicaid, the “prize” for developing a treatment may be insufficient to support investment. Medicaid arguably contributes to this lack of incentive given its relatively low payment rates for pharmaceuticals, which are significantly below other market payers in the U.S. The novel argument Professor Sachs makes is that insurance design could be modified to help achieve socially desirable innovation that the market would not otherwise reward. Continue reading "Health Insurance as Innovation Incentive"

Hackney Reviews Judge Weinstein on Torts

James R. Hackney, Jr., Judge Jack Weinstein and the Construction of Tort Law in America: An Intellectual History, 64 DePaul L. R. 2 (2014), available at SSRN.

Professor James Hackney’s recent review of Judge Jack Weinstein’s work on the bench, Judge Jack Weinstein and the Construction of Tort Law in America: An Intellectual History, is well worth reading. He draws interesting parallels between Weinstein’s approach to resolving mass tort disputes, described in his book Individual Justice in Mass Tort Litigation and reflected in several of his opinions, and Guido Calabresi’s theories of tort law, set out most prominently in The Costs of Accidents. Hackney makes a compelling case that their views are more similar than most scholars recognize.

At first the connection between Calabresi and Weinstein seemed a bit of a stretch to me. I’ve read Calabresi’s The Costs of Accidents many times and it has always struck me to be a primarily normative vision of the tort system, full of considerations that have proved to be enormously influential to tort theorists, but of somewhat limited value to judges. For example, the argument that negligence doctrine should be abolished and replaced by strict liability is a theory that most judges would have difficulty putting into practice. This is also confirmed by Judge Friendly’s reluctance to rely on a normative theory based entirely on Calabresi, and put forward by the plaintiff, as a justification for expanding vicarious liability in Ira S. Bushy & Sons, Inc. v. United States, 398 F.2d 167 (2d Cir. 1968). Continue reading "Hackney Reviews Judge Weinstein on Torts"

On Marriage Equality and Transformation Through Preservation

Douglas NeJaime, Marriage Equality and the New Parenthood, 129 Harv. L. Rev. 1185 (2016).

For nearly as long as same-sex couples have been pressing for marriage equality, progressive legal commentators have been engaged in a robust debate over the desirability of making marriage the main focus—indeed, a focus—of the gay rights movement. Some in this conversation view same-sex marriage as radical, an institution capable of disrupting the links between biology and gender that have long structured marital parenthood.1 Others view it as regressivist, an institution bound to co-opt individuals who choose to organize their lives outside of marriage and one that betrays earlier family law advocacy on behalf of nontraditional parents by valorizing the link between marriage and parentage.2 For many in this latter camp, same-sex marriage is a normatively repressive “straight”-jacket (pun intended).

In Marriage Equality and the New Parenthood, Douglas NeJaime aims to unsettle the second of these views, but in the process destabilizes them both. He does so by foregrounding the legal relationship between marriage and parenthood before, during, and after the nationwide push for marriage equality. Neither completely radical nor completely reactionary, marriage equality, NeJaime shows, is the product of progressive family law pluralism, which itself was the product of a vision of marriage that was in some respects traditional. Even more, NeJaime argues that marriage equality will produce—and already has produced—the pluralistic family law from which it springs, and will likely reverberate well beyond the confines of outlying groups like sexual minorities given its potential to erode the legal priority of marriage, an institution that is already in decline for many. On this masterful telling, marriage equality is at once radical margin and less-radical center. Continue reading "On Marriage Equality and Transformation Through Preservation"