AuthorBamzai, Aditya

INTRODUCTION 700 I. A SKETCH OF THE RELEVANT LAW OF EQUITY 705 A. The Basis for Federal Equity Jurisdiction 705 B. The Backdrop to Equity's Limiting Principles 707 C. The "Equity Will Not" Doctrines 709 D. The "Equity Will Not" Doctrines and Property 713 II. DEBS 716 A. The Pre-Debs Landscape 716 B. The Debs Litigation 720 1. The Backdrop and Briefing 721 2. The Court's Opinion 722 C. Debs 's Aftermath 724 III. FEDERAL EQUITY JURISDICTION AND ITS BOUNDARIES TODAY 729 A. The Normative Basis of the Equity-Property Connection 729 B. The Choice of Limiting Principles 734 CONCLUSION 739 INTRODUCTION

Just over a century and a quarter ago, in 1895, the Supreme Court decided In re Debs. (1) The case was remarkable for a variety of reasons. It concerned the authority of the federal government to end the Pullman Strike of 1894, which followed two economic depressions and was the country's most significant disturbance since the Civil War. (2) The case also concerned an individual, Eugene V. Debs, who would go on to run for President as a Socialist in five subsequent elections. (3) And involved in the case were several of the leading lawyers of their generations--among them, a young Clarence Darrow and an older Lyman Trumbull, both of whom represented Debs. (4) Finally, the case concerned the Court's blessing of the use of equitable remedies in a manner that contemporaries immediately realized was unusual in scope and social significance.

In the Judiciary Act of 1789, Congress authorized the federal courts to hear suits in equity, and also authorized the federal government to seek equitable relief as a plaintiff. (5) In addition, Congress sometimes enacted statutes that reached beyond the traditional boundaries of the common law and equity. When it did so, the federal government had no reason to invoke section 11 of the Judiciary Act of 1789. But when Congress failed to do so, section 11 provided a fallback option authorizing the United States to sue in "equity." (6) The question of how to construe that authority--and specifically whether there were any limits on the federal government's authority that inhere in the power to seek equitable relief--was front and center in the Debs case.

For decades, Debs and the concept of the "labor injunction" were at the heart of not only legal but political debate. (7) Consider the platform of the Democratic Party in 1896. It denounced "government by injunction as a new and highly dangerous form of oppression by which Federal Judges, in contempt of the laws of the States and rights of citizens, become at once legislators, judges and executioners." (8)

Or consider the State of the Union speech given by then-President, later-Chief Justice, William Howard Taft in 1909. He proposed that Congress enact:

[A] statute forbidding hereafter the issuing of any injunction or restraining order, whether temporary or permanent, by any Federal court, without previous notice and a reasonable opportunity to be heard on behalf of the parties to be enjoined; unless it shall appear to the satisfaction of the court that the delay necessary to give such notice and hearing would result in irreparable injury to the complainant.... (9) It is rare that the scope of equitable remedies makes its way into political party platforms and the State of the Union address. But the labor injunction of the early twentieth century was an issue that defined a legal era. (10) Congress effectively ended that era in 1932 when it enacted the Norris-LaGuardia Act, (11) which curtailed labor injunctions.

For some years following passage of the Norris-LaGuardia Act, the scope of the federal government's authority to invoke equitable remedies in the absence of express statutory authorization was a sleepy backwater of the law. (12) In part, that was due to the increasing number of federal statutes that defined the authority of the federal government to seek equitable and related relief. For that reason, the federal government's need to rely on the fallback option contained in 28 U.S.C. [section] 1345 (the recodification of section 11 of the Judiciary Act of 1789) presented itself with increasing rarity. When it did, courts often remarked that the law in this area was confused. (13) In recent years, however, the issue of the scope of equitable relief for the United States has reemerged. The United States has repeatedly invoked its power to sue in equity when challenging state laws that interfere with the federal government's asserted "power over the subject of immigration." (14) In these cases, the parties (and the Court) simply took for granted that the United States could bring an equitable suit without express statutory authority, thereby leading to no Supreme Court analysis on the topic. But the issue became inescapable last term in United States v. Texas. (15) There, after granting certiorari to decide whether the United States could sue in equity to block the S.B. 8 abortion statute, (16) the Supreme Court dismissed the United States' petition for certiorari as improvidently granted. (17) But the dismissal only highlights that the issue will not go away, and the courts will continue to struggle with precisely when, and how, and why the federal government can bring a suit in equity.

This Article answers the question of when the United States may bring a nonstatutory suit in equity. We revisit the Debs case, place it in historical context, and seek to understand the traditional limits placed on equitable relief. Over the last two decades, the Supreme Court has often looked to traditional equitable principles when deciding whether parties may bring suit and obtain equitable relief, (18) and it does so in part because the Judiciary Act of 1789 is the charter of federal equity jurisdiction. (19) Those traditional principles--including the empowering and the limiting principles of equity--therefore remain relevant in the modern era. Debs engaged with one such limit, which emphasizes the need for a connection between equitable relief and a "proprietary" or "property" interest. (20) As we will explain below, Debs expanded the notion of what might qualify as "property" for equitable purposes. And while the case is susceptible to multiple interpretations, the better reading is to understand it as acknowledging and reinforcing that traditional limitation.

The equity-property connection is sometimes stated as a rule that equity will only protect a proprietary interest. (21) It is sometimes presented more affirmatively--in other words, as a statement equity will protect a proprietary interest, notwithstanding some other principle about what equity will not do. (22) The rule has certain exceptions. (23) One-exception is that it does not apply if there is statutory authorization for the plaintiff to seek equitable relief, which means the domain in which the proprietary-interest requirement is relevant has been steadily shrinking. And the requirement has been vigorously criticized by scholars for a century. (24)

Nevertheless, the proprietary-interest requirement serves valuable-functions today. Where no statute focuses the actions of equity, the traditional limits of equity themselves provide the focus. That is especially needed because equity lacks "causes of action," (25) which might otherwise define and demarcate the exercise of judicial power. Such restraints have long been recognized as especially important in equity because of its vast remedial powers, (26) and the heightened concerns of political legitimacy that attend those powers--as in Debs itself. Moreover, this understanding of the connection between equitable relief and proprietary interests may also have implications for how to understand Ex parte Young. (27)

Our Article proceeds as follows. In Part I, we analyze some of equity's traditional limiting principles, including the "equity will not" doctrines and the equity-property connection. This Part describes the leading English Chancery case, Gee v. Pritchard. (28) In Part II, we turn to the lead up to the Debs case, the Debs case itself, and its aftermath. Finally, in Part III, we will turn to an evaluation of the nature of equity today--and discuss what equity's limiting principles in the present should be.


    In this Part, we describe the relevant law of equity necessary for understanding Debs. Without comprehensively addressing the topic, Section I.A spells out the foundation of the federal courts' equity jurisdiction and the Supreme Court's cases addressing its scope. Sections LB through I.D then explain how the English Court of Chancery and the equity tradition more broadly established limits on injunctive powers that cabin and direct a court's discretion. One of those limits--as we will discuss in Section I.D--was the need for a connection between equitable relief and a proprietary interest.

    1. The Basis for Federal Equity Jurisdiction

      Article III permits the federal courts to decide "Cases, in Law and Equity." (29) The First Congress carried into effect a portion of Article Ill's permission to decide "equity" cases by authorizing federal courts, in the Judiciary Act of 1789, to hear some, though not all, "suits of a civil nature at common law or in equity." (30) In relevant part, the First Judiciary Act authorized jurisdiction (subject to an amount-in-controversy requirement) over "all suits of a civil nature at common law or in equity, where... the United States are plaintiffs, or petitioners." (31)

      As the Supreme Court has consistently understood, this statutory authorization to adjudicate equity cases was linked to the equitable jurisdiction of the English Court of Chancery in 1789. Writing in 1928, then-Professor (and future Judge) Armistead Dobie explained that "[s]ubstantially... the equity jurisdiction of the federal courts is the jurisdiction in equity exercised by the High Court of Chancery in England at the time of the adoption of the Constitution and the...

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