AuthorSohoni, Mila


Equity traces its genesis to kingly power. (2) But "in our system of government... [w]e have no king." (3) Who or what, if anything, inherited the role of the sovereign in federal equity? (4) Is the sovereign the executive branch--or is it Congress? Is it "the United States" or "the people of the United States"? Or is it instead, as Thomas Paine had it, that in America "the law ought to be king[,] and there ought to be no other"? (5) However we conceive of the sovereign, is the sovereign entitled to special deference in a federal court of equity--or to the reverse?

Federal courts sitting in equity have not arrived at consistent answers to these puzzles. They have vacillated on who the sovereign is. And they have vacillated on whether the sovereign is entitled to equal, better, or worse treatment from equity than other litigants receive. If equity is, like spacetime, our law's background field--a "gloss written round our code" (6)--then sovereign power is a star so massive that it warps that field, shrinking parts of it and expanding others. In this Essay, I set out some examples of that phenomenon and explore some of its continuing ramifications, including in momentous cases decided as recently as a few months ago. (7)

Courts in equity often claim to treat the federal sovereign as if it were just another litigant--one whose "claims... appeal... to the conscience of the chancellor with the same, but with no greater or less, force than would those of a private citizen.... under like circumstances." (8) But the reality is more complicated. To convey a sense of equity's split personality in this realm, Part I surveys an array of doctrines and instances in which federal courts sitting in equity have taken contradictory positions on equity's relationship to sovereign power. In England, as noted, equity derived its power from the crown. In America, from the earliest days of the federal courts onwards, aspects of the law and practice of equity have continued to reflect that point of genesis by displaying a special solicitude toward the sovereign (conceived in varying ways) and its interests (conceived in varying ways). At the same time, however, equity has developed into the chief tool used by American federal courts to check sovereign power--a task that the English chancellors could not perform with respect to the king. (9) On this side of the ledger, courts sitting in equity have developed fictions about sovereign identity that enable them to elide the sovereign's claims to special treatment, and which at times leverage the protean character of the sovereign as a reason to give the sovereign less favorable treatment than private litigants would receive. Equity, then, operates both as a sword and shield of the sovereign and as a sword and shield against the sovereign.

This two-sided approach to the sovereign, though longstanding, is underappreciated. Its obscuring has consequences, as Section II.A explains. Courts and commentators overlook that in equity the sovereign is in fact often treated differently (or pretend that it is not treated differently) than the ordinary litigant. One consequence of this is that doctrines crafted to accommodate the sovereign's special stature seep outwards to other litigants. Another consequence is that courts and litigants recast cases that turned on the sovereign's special stature as if they would have come out the same way if the sovereign had not been a party to the suit, or "read down" those cases in a manner that short-shrifts the sovereign's distinctive position. If we grappled more mindfully with the sovereign's unique station in equity, we could better assess whether such blurring of doctrine is warranted.

Examining equity's conception of sovereign power yields an additional dividend, as Section II.B outlines. It helps to shed light on an enduring ambiguity of federal equity: equity's precise status as constitutional law. (10) Does Article Ill's reference to "Cases, in... Equity" (11) constrain Congress's power to create new equitable remedies? How we conceive of "the sovereign" and its prerogatives may help to answer that longstanding question. One might take the view that, in the American system of government, "We the People," the true sovereigns, allocated sovereignty across the branches through adopting the Constitution. On that view, Congress, as the organ empowered to implement the popular will through legislation, should be able to authorize--just as the English sovereigns once did--the remedies that will be available in equity; moreover, by delegating authority to federal courts, Congress should be able to empower federal courts to change and update the remedies available in equity--just as the English sovereigns long ago empowered their chancellors to do. Seen that way, Article Ill's reference to "Equity" would not bar the federal sovereign from creating new equitable remedies. But the Court has not--or, at least, has not forthrightly--embraced that conception of the sovereign. Rather, the Court has left open the possibility that the clause's reference to "Equity" may bound Congress's power. On that view, "Equity" (understood as a body of law extant in 1789 and incorporated by reference in the Constitution) would be able to supersede "sovereign" power (as reflected in a duly enacted federal statute that is otherwise constitutional). That view of things is apparently one that at least Justice Thomas may find congenial. (12)

A brief note at the outset: this Essay's goal is not to propose a singular solution for how federal courts should treat the sovereign in equity, nor is its goal to construct a complete picture of equity's complicated role in American law. (13) Rather, its aim is to foreground, and urge greater attentiveness to, the variety of ways in which courts have conceived of the relationship between equity and the sovereign, and the many degrees of freedom that courts possess in characterizing that relationship. The recurrent challenge in this context, as will be shown below, is never an on-or-off, binary matter of determining "what equity will do" or "what equity will not do." Instead, the question is what understanding of equity's relationship to the federal sovereign one should embrace--in the uncertain context in which many different choices can claim fidelity both to "the grand aims of equity" (14) and to its history and traditions.


    In the United States, the Court has said, "there is no such thing as a kingly head to the nation.... Under our system the people, who are there [in England] called subjects, are the sovereign." (15)

    Fair enough; ridding the country of the "kingly head" to the nation was, after all, the point of the Revolution. Equity was, however, a form of "kingly" power--a point certainly not lost on the colonists of pre-Revolutionary America. "[B]y the seventeenth century equity had developed a sullied reputation in some sectors.... [e]specially among religious and political dissenters," who associated the Court of Chancery with "royal prerogative, judicial overreaching, and standardless discretion." (16) Yet, without much discussion of the matter at the Constitutional Convention, (17) the Framers of the Constitution assured equity a continuing role in their new government, by providing in Article III that "the judicial Power shall extend" to "Cases, in... Equity." (18)

    The first Congress, in the Judiciary Act of 1789, gave some of the lower federal courts (the circuit courts) jurisdiction over "all suits of a civil nature at common law or in equity" in which at least $500 was in controversy and in which the parties were diverse or the United States was the plaintiff. (19) Five days later, the so-called "First Process Act" followed. (20) That Act provided that the "forms and modes of proceedings in causes of equity... shall be according to the course of the civil law." (21)

    The First Process Act almost, but didn't, say something more. In the Senate, the original bill had included a provision requiring "[t]hat all Writs [and] Processes issuing out of any of the Courts of the United States, shall be in the name of the President of the United States of America." (22) As Tom Lee notes, "[s]ome senators chafed at this whiff of the British king's writs," (23) and a member of the House protested its connotation that "sovereign authority was vested in the Executive." (24) The House struck the words "'the President of so that writs would run from the United States, in which sovereignty rightfully reposed." (25) The two chambers eventually reached a stalemate on this point, and the provision was dropped entirely. Soon thereafter, the Supreme Court resolved in its first set of rules that "(unless and until it shall be otherwise provided by Law) all Process of this Court shall be in the Name of 'the President of the United States.'" (26) This was the fourth of just four rules adopted by the Supreme Court--the other three had to do with ministerial matters of oaths, attorney admissions, and law clerks. (27) It survives to this day. (2H)

    The First Congress's deadlock over how to "Stile" (29) the federal courts' "writs and processes" has been called "a matter that seems trivial to the modern legal mind." (30) It does not seem trivial to me. It revealed the disagreement, right from the beginning, over how to frame equity's relationship to the federal sovereign. (31) The deadlock offers an early snapshot of what proved to be an enduring fracture in American equity, which has since evolved an array of Janus-faced doctrines with respect to the sovereign.

    1. Sivord and Shield of the Sovereign

      Equity's roots in sovereign power have inflected the federal courts' development of equity since the Founding. Through a variety of doctrines, courts in equity have shown a special solicitude for the federal sovereign, a solicitude that other litigants do not enjoy. These perks have attached at the threshold of...

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