(Washington Monument Pix © Larry Catá Backer 2016)
I recently announced the forthcoming publication by Carolina Academic Press of my Elements of Law and the United States Legal System
(ISBN: 978-1-61163-927-8 • e-ISBN: 978-1-61163-984-1).
The work made sense as a century of legalization (here and here) and judicialization (here and here) forces more and more people worldwide to bump up against aspects of aspects of the U.S: legal system. The system is a complex amalgamation of distinct approaches to legalization, and the mechanics of its implementation, that tends to be mystifying to everyone, even individuals trained in law elsewhere. Most people tend to be hard pressed to explain the U.S. legal system either to non-lawyers or to foreigners, even sophisticated foreign lawyers or jurists, or for that matter to each other. Most would find it difficult unravel the distinct strands of law in the United States, each of which deeply embedded within their own internally coherent systems of generation, interpretation and application. The object of the book is to make the elements of law within the U.S. legal system more accessible and easier to invoke.
All contents posted on line may be accessed here:
Summary book organization and Chapter 4 Summary follows.
The work is divided into three parts and a historical preface. The Preface traces the origins of the materials and its objectives. It suggests as well the challenges of teaching normative or framing concepts around a profession based on the training in technique; in effect the book seeks to expose the underlying normative structures and patterns well embedded within the techniques that tend to center the study of law and legal subjects. Part I: What is Law? An Introduction, is divided into two chapters. Chapter 1 sets out a detailed roadmap for the materials built around an introductory problem that highlights the book's major themes. Chapter 2 then introduces the principal vocabulary, institutions and forms, starting with the issue of the connection between law, justice and the state. Part II: U.S. Law: System and Sub-Systems, then focuses on the principal components that together make up the U.S. legal system. Its five chapters each focus on three forms of law sub-systems. The first includes law articulated by the courts--common law and equity. The second touches on law articulated by legislatures--statutes and administrative regulations. The third focuses on emerging systems of governance beyond the state--private regulation, hybrid public-private regulation and social norms. Part III: Hierarchies of Law and Governance: The Relationship Between People, Law, and Government moves from the study of the specific characteristics of legal subsystems to their relationship to government. It speaks to the governmentalization of law. Its four chapters first consider the fundamental theories that tie law to the government, the role of rule of law concepts, the development of hierarchies of law within the domestic legal order of the United States and then the relationship of domestic to international law. Part IV: Institutional Architecture of Law and Governance: The Law of Government of the United States then considers the legal rules through which governmental regulatory authority may be exercised. If Part III spoke to the issue of the governmentalization of law, Part IV touches on the legalization of government. Its four chapters considers the fundamental principles of separation of powers and checks and balances, the constraining of administrative discretion, popular law making through initiative and referendum, and the legal structu8res of federalism. Part V: The Role of the Courts in the Application of Law: Judicial Review, Methodologies of Interpretation, and Legitimacy closes the circle by bringing the focus back to the courts and their engagement with law. The first of its three chapters touches on the doctrine of judicial review and the legalization of the authority to interpret and apply law beyond common law. The second of its chapters then considers the techniques of judicial interpretation and their relationship to judicial legitimacy. The last of the chapters then considers the binding nat8re of judicial opinion, especially the legal effect of judicial decisions interpreting statute.
The work made sense as a century of legalization (here and here) and judicialization (here and here) forces more and more people worldwide to bump up against aspects of aspects of the U.S: legal system. The system is a complex amalgamation of distinct approaches to legalization, and the mechanics of its implementation, that tends to be mystifying to everyone, even individuals trained in law elsewhere. Most people tend to be hard pressed to explain the U.S. legal system either to non-lawyers or to foreigners, even sophisticated foreign lawyers or jurists, or for that matter to each other. Most would find it difficult unravel the distinct strands of law in the United States, each of which deeply embedded within their own internally coherent systems of generation, interpretation and application. The object of the book is to make the elements of law within the U.S. legal system more accessible and easier to invoke.
All contents posted on line may be accessed here:
Summary book organization and Chapter 4 Summary follows.
The work is divided into three parts and a historical preface. The Preface traces the origins of the materials and its objectives. It suggests as well the challenges of teaching normative or framing concepts around a profession based on the training in technique; in effect the book seeks to expose the underlying normative structures and patterns well embedded within the techniques that tend to center the study of law and legal subjects. Part I: What is Law? An Introduction, is divided into two chapters. Chapter 1 sets out a detailed roadmap for the materials built around an introductory problem that highlights the book's major themes. Chapter 2 then introduces the principal vocabulary, institutions and forms, starting with the issue of the connection between law, justice and the state. Part II: U.S. Law: System and Sub-Systems, then focuses on the principal components that together make up the U.S. legal system. Its five chapters each focus on three forms of law sub-systems. The first includes law articulated by the courts--common law and equity. The second touches on law articulated by legislatures--statutes and administrative regulations. The third focuses on emerging systems of governance beyond the state--private regulation, hybrid public-private regulation and social norms. Part III: Hierarchies of Law and Governance: The Relationship Between People, Law, and Government moves from the study of the specific characteristics of legal subsystems to their relationship to government. It speaks to the governmentalization of law. Its four chapters first consider the fundamental theories that tie law to the government, the role of rule of law concepts, the development of hierarchies of law within the domestic legal order of the United States and then the relationship of domestic to international law. Part IV: Institutional Architecture of Law and Governance: The Law of Government of the United States then considers the legal rules through which governmental regulatory authority may be exercised. If Part III spoke to the issue of the governmentalization of law, Part IV touches on the legalization of government. Its four chapters considers the fundamental principles of separation of powers and checks and balances, the constraining of administrative discretion, popular law making through initiative and referendum, and the legal structu8res of federalism. Part V: The Role of the Courts in the Application of Law: Judicial Review, Methodologies of Interpretation, and Legitimacy closes the circle by bringing the focus back to the courts and their engagement with law. The first of its three chapters touches on the doctrine of judicial review and the legalization of the authority to interpret and apply law beyond common law. The second of its chapters then considers the techniques of judicial interpretation and their relationship to judicial legitimacy. The last of the chapters then considers the binding nat8re of judicial opinion, especially the legal effect of judicial decisions interpreting statute.
Chapter 4
Law Articulated by Courts: Equity
A. Introduction
B. The Problem of Orchid Pots
--Problem 4
--Hermès Int'l v. Lederer de Paris Fifth Ave., Inc.
--Notes and Questions
C. Law Articulated by Courts: Equity
--Russell Fowler, A History of Chancery and Its Equity: From Medieval England to Today's Tennessee
--Kristin A. Collins, “A Considerable Surgical Operation”: Article III, Equity, and Judge-Made Law in the Federal Courts
--Notes and Questions
--eBay Inc. v. MercExchange, L.L.C.
--Notes and Questions
D. Equity and Substantive Rights-Obligations—Fiduciary Duty and the Corporation
--Bayer v. Beran
--Notes and Questions
E. Equity and Remedies: Injunction and Specific Performance
--Samuel Bray, The System of Equitable Remedies
--Notes and Questions
--Walgreen Co. v. Sara Creek Property Co., B.V. et al.
--Notes and Questions
F. Equity and Defenses in Civil Actions: Unclean or Dirty Hands
--Precision Instrument Mfg. Co. v. Auto. Maint. Mach. Co.
--Note and Questions
--Petrella v. Metro-Goldwyn-Mayer, Inc.
--Notes and Questions
G. Learning Objectives
A. Introduction
We have been considering law articulated and administered by and through courts. The student should now have a sense of the great foundation of U.S. legal system ideology—the common law. Chapter Two sought to disaggregate the complex concepts bound up within common law. First, it references a historical system for the administration of law through the royal (and now the American federal and state) courts. Second, it references the universe of substantive rights of private and persons that may be brought for resolution before the courts. Third, common law references a mode of working through legal problem, one that is based on the application of precedent (the decisions of other courts in similar circumstances) to disputes. Common law is thus rule, system, and ideology.
But the student has seen that the common law produced its own limits. Though it was dynamic enough within its own scope, that scope was solidified early in English history. Society continued to evolve, and the issues that brought disputes among its inhabitants evolved as well. Another method was necessary to meet the demands of disputants. And thus rose equity—a system at once quite distinct from yet also quite similar to common law. Like common law, it has a (1) procedural, (2) substantive, and (3) remedial elements. We begin with a short description of equity in its application in the United States. Both are grounded in the resolution of disputes among litigants. Both are based on a decision process that is grounded on precedent. But equity is not bounded by writ. It is bounded by common law, and was traditionally viewed as a supplement to common law. It grew as a distinct though subordinate system until it and common law were merged in the 19th and 20th centuries in the United States. Today elements of equity have become part of much of the landscape of litigation, it is an essential element of the remedial authority of courts, and its causes of action have become an important element of the core of the U.S. legal system—including fraud and deception, fiduciary duty, and trusts. Moreover, elements of equity have increasingly found their way into statutes. Equity as a way of approaching legal issues has also become central to the way in which courts approach disputes.[1]
Common law, then, does not define the entire universe of “judge administered” law in the United States.[2] This chapter, provides a brief introduction to the other great manifestation of judge administered law—equity. In studying the materials that follow, consider the extent to which you agree with the scholar Douglas Laycock’s point that “Equity is ordinary, not extraordinary, in remedies, procedure, and substance. Perhaps most important, the discretion once associated with equity now pervades the legal system.”[3] Consider as well the importance of equity as the set of methodological techniques that have been developed to ensure that U.S. law remains connected to notions of justice (and thus to notions of the legitimacy of law first raised in the Institutes)—that is, that it serves as the mediating force between law and justice. “There are some jurists today who seem to think it somewhat naïve to emphasize the word “justice” in legal discussions. But justice still remains the essential purpose of all law. Equity, certainly in its historical moral sense, and hopefully in its administrative sense, is the principle technique thus far developed to make certain that law always will be readily adaptable for, and directed toward, the achievement of justice.”[4]
The chapter starts with a brief review of the history of equity and its role in the administration of law in the United States. The bulk of the chapter is taken up with a consideration of the most important features of equity that affect the legal system of the United States. That examination starts with an example of the substantive norms of equity (fiduciary duty). We then consider equitable remedies (injunction). The chapter ends with a consideration of some important equitable process rules that represent the embedding of social values in resolving private disputes (dirty hands doctrine) and that articulate policy choices about social peace (laches).
Learning Objectives.
(1) The student should be familiar with concept of equity and its role in the U.S. legal system. The student should be aware of the distinction between equity and the common law and how these two legal principles evolved separately from each other but are also related to each other.
(2) The student should be generally familiar with the history of the development of equity in the UK and in the U.S.
(3) The student should understand the contemporary understanding of the role of equity in the United States as consisting of three quite distinct functions: equity as a set of judicially articulated substantive law; equity as a set of specific redial mechanisms; and equity as as et of procedural devices.
(4) Students will be introduced to equity as substantive law through a study of basic fiduciary duty principles.
(5) Students will examine equity as a set of remedial devices through an introduction to injunctions and specific performance.
(6) Students will consider equity as a set of procedural devices through an introduction to the concepts of laches and the doctrine of unclean hands.
NOTES
[1] Douglas Laycock, “The Triumph of Equity,” 56 Law & Contemp. Probs, 56 (1993): 53-54.
[2] I use this term in lieu of the more common and somewhat misleading term “judge made” law.
[3] Douglas Laycock, “The Triumph of Equity,” Law and Contemporary Problems 56(3) (1993): 53, 54.
[4] Howard L. Oleck, “Historical Nature of Equity Jurisprudence, Fordham Law Review 20 (1951): 23, 44.
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