EQUITY'S FEDERALISM.

• Author: Funk, Kellen
• Position: The Nature of the Federal Equity Power

INTRODUCTION 2058 I. EQUITY'S ESSENCES 2060 II. FUSION AND FEDERALISM IN THE ANTEBELLUM REPUBLIC 2064 A. Early Statutes and Anti-Eusion in Congress 2065 B. State Codes and Anti-Eusion at the Supreme Court 2068 III. THE RECONSTRUCTION OF CHANCERY'S REACH 2073 IV. RECONSTRUCTION REMEMBERED IN THE ERA OF EQUITY'S PUBLIC LAW 2077 A. Fusion in the Federal Rules 2077 B. Public Law Equity 2079 C. Reconstruction's Revival 2080 1). Federal Equity Follows State Law 2083 CONCLUSION 2090 INTRODUCTION

"The United States has a dual court system" is today an obvious statement, clearly referencing the separate and semi-independent court systems of the states on the one hand and of the federal government on the other. "The United States have (1) dual court systems" was an equally obvious statement in the early republic, but with a different referent: discussion of and complaints about dual courts and double proceedings were in that era far more often referring to the distinction between courts of common law and the court of chancery, or for short, courts of law and of equity. To be sure, not all of the American colonies tried to transplant England's dual system of courts--Puritan New England devised a legal system without a separate branch of equity (2)--but in sophisticated commercial colonies like New York and South Carolina, and for the nascent English-trained bar in the Americas, the rigid institutional division and jurisprudential distinction between law and equity inhered, as it was often said, "in the nature of things." (3)

Meanwhile at the national level, the Constitution defined judicial power as extending to cases in "law and equity," and the first Judiciary Act treated law and equity as separate jurisdictions even as the same federal judge would be called upon to administer them both. (4) The mimicry of English legality could run only up to a point, then, for England had neither inferior nor local courts of equity. (5) The double duality of the United States, a dual court system within a dual sovereignty, has thus been a defining feature of American legal history.

This Essay offers a sketch of that history. Of course, the history of equitable practices at the state and federal level is a vast terrain, much of it remaining to be explored, particularly at the level of lower courts. Relying on archival research, this Essay focuses on the history of equity's federalism as it has been regulated by congressional statutes and as its story has been retold by the Supreme Court in pivotal interpretations of those statutes.

Congress's earliest legislation jealously guarded federal equity against fusion with common law at either the state or federal levels. The antebellum Supreme Court adopted a strongly anti-fusion stance and took pains to protect federal equity from experimental state-level reforms. In the midst of Reconstruction, however, Congress reconfigured the ways federal equity would intermix with state law and legal process. Providing for expansive removal rights and original causes of action, the Reconstruction Congress empowered federal courts to seize control of former state law actions without particular regard for maintaining the distinction between law and equity.

After equitable remedies were extended against public officials and law and equity procedure were merged in the 1938 Federal Rules of Civil Procedure, the federal courts wrangled over competing historical visions of how federal equity was to operate against state actors and especially state courts. In a series of pivotal cases from 1960 to 1975, Supreme Court doctrine set aside the well-documented legislative history of Reconstruction statutes in favor of a mythic retelling of the 1790s that reduced equity to a principle of federalism, one defined by an overdrawn regard for the sovereignty and prerogative of the states.

In short, my account of federal equity is a story of anti-fusionist structures and attitudes being exchanged for anti-federalist ones. In arguing this, I do not mean to imply that some pure essence of equity has been lost or distorted. In many ways the essential precepts of equity--such as the maxim that equity follows the law--have remained consistent over time, though they may struggle to bear the federalism-protecting weight the modern Court expects them to. What I think has gotten lost and distorted is the intent of the Reconstruction Congress that federal practice should be otherwise. As my brief foray into the archives of the Justices' chambers reveals, the Court has had to actively ignore the Reconstruction statutes and their animating intent in order to construct its modern fable of an anti-federalist equity.

This judicially invented historical narrative has led to a peculiar asymmetry in practice today, where it has become surprisingly easy for federal courts to equitably restrain the other federal branches but significantly difficult for them to redress even extreme violations of federal rights at the state and local level. This asymmetry is explored briefly in the concluding section. The Parts that follow proceed chronologically.

1. EQUITY'S ESSENCES

   A great deal of scholarship on equity and federalism has treated equity as something familiar, federalism as the puzzle to be solved. (6) More recent commentary, however, has shown just how variable equity practice could be over time. (7) This Part offers a brief overview of what made equity special along the horizontal dimension--that is, as compared to law. We will then be better equipped to assess equity along the vertical dimension of state and federal interaction.

   The essential features of equity often seem to be in the eye of the beholder. During the same decade that practical treatise writers emphasized equity's malleable formlessness, Joseph Story published his landmark account of equity as following rule-bound formality/Likewise, today's jurists are divided on whether equity's supplemental character means it should fill the gaps left by the law, (9) or should leave such gaps as it finds them. (10)

   Without space to fully describe equity's history, we might best follow the advice of law-and-litterateur Gary Watt by giving up the hunt for "essential" features of equity and instead treat equity as several "clusters" of ideas and languages that involve remedies, doctrines, and maxims." As to the first two, equity exercised jurisdiction over contested points of intent or will, matters of mind or soul that could not be penetrated by lay jurors such as trusts, fraud, accident, or mistake. (12) Under the sure hand of churchly and royal officials, equity developed a tolerance for balancing competing claims of merit rather than handing victory to one side or another in an adjudication. It could thus tackle complicated questions of guardianship, partition, and account. (13) By acting on persons rather than properties, equity offered extraordinary remedies like injunctions and contempts backed by the threat of imprisonment. All these features together gave equity the "inquisitorial" powers to peer into the minds of its subjects through the bill of dicovery and interrogatory conferences.

   As to equity'sfamous maxims, two are particularly important for the history ofequity's federalism. The first was at the heart of Story's Commentaries: quity follows the law. (14) Writing against a seventeenth-century moral traditio that supposed equity supplied discretion to mitigate the hrshness of common-law rules, (15) Story pronounced that equity could mke up for a legal deficiency only "where the principles of law, by which the ordinary courts are guided, give a right, but the powers of those courts are not sufficient to afford a complete remedy." (16) In cases where "there exists no rule, applicable to all the circumstances," the chancellor had to decide "whether the party should be remediless, or whether the rule furnishing the closest analogy ought to be followed." (17) In Story's view, equity did not offer causes of action independent of common-law rights. Equity could act only on entitlements established at law. In the absence of those entitlements, parties might well be left without a remedy by the equitable judge.

   Equity followed the law in a more mundane sense as well. As a matter of practice, suits in equity were often filed only after litigation had begun in the courts of common law, either because the legal entitlement first had to be established at law or because the legal remedy had to be shown insufficient or inaccessible. (18) This feature of double filing in separate courts to resolve what seemed to be a single claim would be a crucial problem for the early history of equity's federalism.

   The second maxim, equity acts on conscience, was most often used to explain what equity was not, rather than what it was. (19) Equity was not a license, the treatises emphasized, forjudges to rule according to their own notions of private morality or of natural law. It did not confer discretion to set aside legal rules or statutes--even harsh ones--where they otherwise clearly applied. Story lamented that "many persons are misled into the false notion" that equity's "real and peculiar duty" was to provide discretion in "correcting, mitigating, or interpreting the law." (20)

   If equity was not discretion to depart from legal rides, what did it mean that equity was a jurisdiction of conscience? We can make some headway by paying attention to discussion of equity's forms of proceeding in the nineteenth century. (21) Often those discussions had the peculiar quality of describing equity's form while arguing for equity's essential formlessness. As one leading New York lawyer put it, "There was literally no form about it. The party stated his case, and asked the relief he desired, and the court, if he proved his case, gave him that relief." (22) What this lawyer meant was that equity did not use forms of action the way the common-law courts did. Instead of tethering specific pleas to...