The Triumph of Equity Revisited: The Stages of Equitable Discretion

Abstract

Every judge’s discretion includes equitable discretion. For a symposium in Steve Subrin’s honor, this article examines equitable discretion beginning with Steve’s classic article How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective.

In How Equity Conquered Common Law, Steve charged that Equity was amorphous, unfocused, and diffuse. This article analyzes equitable discretion in depth to evaluate Steve’s argument, to discover times when a judge needs equitable discretion, to develop principles of confinement, and to prune excesses.

Equity can be analyzed under three headings: substantive, procedural, and, this article’s main topic, remedy. A judge’s equitable discretion may vary depending on the source of the plaintiff’s substantive right, whether found in constitution, statute, or common law. Equitable discretion includes declining a remedy altogether, choosing the remedy, and shaping the remedy.

This article reviews the origins and development of a judge’s equitable discretion both as a technique to adjust the margins and as an ethical default. It summarizes a lawsuit’s stages and equitable decision points: pleadings, motions, discovery, substantive law, place of trial, interlocutory equitable relief, injunction bond, equitable defenses of laches and unclean hands, jury trial, injunction terms, attorney fees, contempt, stay of an injunction on appeal, collection of a money judgment, and the appeal including the scope of review. It reviews the judge’s equitable discretion for adjudicating its main remedy, an injunction, as well as for other Equitable remedies - receiver, specific performance, constructive trust, salvor, rescission-restitution, legal and equitable restitution, subrogation, and declaratory judgment.

The tension between specific, predictable rules and flexible justice for a discrete dispute is inevitable and universal. This article seconds some of Steve’s points; it favors administering the judge’s equitable discretion with principles, standards, and rules except when the judge must consider context to fashion a specific non-precedential remedy for a lawsuit’s facts and circumstances.

Keywords: Discretion, Equity, Civil Procedure, Litigation, Common Law, Pleading, Discovery, Trial, Injunction, Laches, Unclean Hands, Jury, Attorney Fees, Contempt, Appeal, Scope of Review, Specific Performance, Constructive Trust, Rescission, Restitution, Subrogation, Declaratory Judgment

JEL Classification: K1, K10, K13, K41