GETTING INTO EQUITY.

• Author: Bray, Samuel L.

For two centuries, common lawyers have talked about a "cause of action." But "cause of action" is not an organizing principle for equity. This Article shows how a plaintiff gets into equity, and it explains that equity is shaped by the interplay of its remedial, procedural, and substantive law. Equity is adjectival, that is, it modifies law rather than the other way around. Its power comes from remedies, not rights. And for getting into equity, what is central is a grievance. To insist on an equitable cause of action is to work a fundamental change in how a plaintiff gets into equity.

INTRODUCTION 1764 I. CLEARING AWAY THE COBWEBS 1766 A. Procedural Fusion 1766 B. Blackstone and Roman Law 1768 [I. ARE. THERE EQUITABLE CAUSES OF ACTION? 1770 A. Two Senses of a Cause of Action 1770 B. Is There a Cause of Action in Equity? 1772 III. How TO GET INTO EQUITY 1776 A. The Centr ality of Grievances 1777 B. Tags, Not Hierarchies 1780 C. The Adjectival Nature of Equity 1782 D. Distinctive Characteristics of Equity Pleading 1785 E. The Centrality of Remedies 1792 IV. CONTEMPORARY IMPLICATIONS 1795 CONCLUSION 1798 INTRODUCTION

One of the puzzles in the contemporary law of the federal courts is where an equitahle cause of action comes from. Surely it has to come from somewhere, for everyone recogniz.es the legitimacy of injunctions like that in Ex paite Young. (1) But where?

That question is not easily answered. Having a cause of action was how a plaintiff would get into a court of law, but to get into equity, a plaintiff needed something quite different. A suitor in equity needed a grievance, a good story that would motivate the court. The story needed to connect up with some recurring pattern of equitable intervention, and these patterns were called "heads of equitable jurisdiction." (2) A plaintiff who didn't fit within one of the heads of equitable jurisdiction would be denied relief "for want of [e]quity"--not for failure to state a cause of action. (1)

At law, the cause of action determined everything about the case, and there was a 1:1 relationship between the cause of action and the plaintiff's claim. But the equitable patterns were looser. If the legal cause of action was like a computer file organization that uses folders, the equitable patterns worked more like tags. There might be one tag for a suit in equity, or there might be several. What equity was offering was not a kind of stand-alone justice, but something adjectival. It was correcting or supplementing the justice offered by law--patching holes, as it were. And a critical part of equity's attraction was the potency of its remedies.

These differences about the basis for litigation at law and in equity have been obscured for courts and scholars today. One consequence is that the Supreme Court has sometimes preferred to treat the availability of equitable relief as largely a matter of statutory interpretation, as in Armstrong v. Exceptional Child Center, Inc. (4) Yet that approach is not possible in cases involving non-statutory claims. Cases like United States v. Texas (5) force the courts to consider anew what it takes for a plaintiff to get into equity.

The ambition of this Article is to recover the traditional understanding of how plaintiffs got into equity, and to show how this understanding can help federal courts understand and inhabit equity today. We look primarily at the concurrent jurisdiction of equity. (6) In other words, our concern is primarily with those cases in which equity offers an alternative to what a plaintiff could get at law--especially an alternative remedy. This concurrent jurisdiction of equity is in contrast to the exclusive jurisdiction, i.e., the swathes of substantive law that are entirely the creation of equity (e.g., trust law).

The federal courts have equity jurisdiction, and the Supreme Court has decided many cases about its contours over the last quarter-century. (7) In this burgeoning set of new equity cases, the Court has looked to the traditional practices of equity to determine whether a particular equitable claim or remedy should be available. These are good developments. (8) By recovering the traditional understanding of the bases for equitable intervention, this Article provides a foundation for many of these cases and for new ones in the future.

The remainder of this Article is as follows. Part I diagnoses two reasons for the confusion about how to get into equity: one is a misunderstanding of procedural fusion, and the other is an attempt to read equity in terms of rights and correlative duties, much as Blackstone did with the common law. Part II considers whether equity has "causes of action," and concludes that it does not. Part III offers an affirmative account of how to get into equity. It emphasizes the centrality of the grievance, as well as equity's loose organizing structure, its adjectival quality, and the priority of remedies. Part IV addresses contemporary implications.

1. CLEARING AWAY THE COBWEBS

   This Part clears away two misunderstandings that can obscure how a plaintiff gets into equity. One is overreading the merger of legal and equitable procedure, for which the decisive moment in the federal courts is the adoption of the Federal Rules of Civil Procedure in 1938. The other is trying to think about equity in terms of correlative rights and duties, the deontic logic that Blackstone brought to the common law from Roman law.

   1. Procedural Fusion

      How does one get into equity? The very question might strike some as odd. Why single out equity? Why not instead simply ask how one brings a civil action? And framed in such a quotidian way, the question loses interest. That question is answered in elementary law school courses on civil procedure.

      Even a reader alive to the fact that procedure once differed in law and equity might think the question a strictly historical one. Procedural fusion was a dream shared by many early American lawyers, and it was realized long ago in New York with the enactment of the Field Code and in most other states since. In the federal courts, it was systematically achieved nearly a century ago with the adoption of the Federal Rules of Civil Procedure. (9)

      To see that the question of how to get into equity is a live one, we must start with clearing away a misunderstanding about the effect of procedural fusion. In the long-running debates about procedural fusion, the critics warned that it would lead to wider conflation and confusion of law and equity, while the fusionists insisted that only the procedures of law and equity were being merged. (10)

      As a matter of legal effect, the fusionists were right. Merging the procedures of law and equity did not affect substantive rights. Indeed, it could not have, because the Rules Enabling Act explicitly says that the Federal Rules of Civil Procedure "shall not abridge, enlarge or modify any substantive right." (11) This understanding has been explicitly endorsed by the Supreme Court in just the last decade. The Court held that because laches was "a defense developed by courts of equity[,] its principal application was, and remains, to claims of an equitable cast." (12) And the Court expressly rejected the argument that the adoption of the Federal Rules of Civil Procedure merged legal and equitable defenses. "True," wrote Justice Ginsburg for the Court, "there has been, since 1938, only 'one form of action--the civil action.' But 'the substantive and remedial principles [applicable] prior to the advent of the federal rules [have] not changed."' (13)

      And yet in another sense the critics of fusion were right. Equity continues to make important contributions to our legal system, but these have become invisible to many American lawyers, scholars, and law students. (14) There is fresh academic interest in equity and its distinctive contributions, both actual and potential. (15) But there is plenty of inertia and unknowing indifference, and many substantive and remedial doctrines of equity have been dislocated from equity proper (i.e., equity as a subsidiary system of law) and have been fragmented or dispersed throughout the common law. This is how equity is experienced by a contemporary law student. Even when doctrines are identified as equitable, they are encountered as strewn about courses on contract, tort, property, civil procedure, agency, trusts, corporations, intellectual property, and constitutional law. (16)

      Equity may have "conquered" law through procedural fusion if we measure success by tallying the origins of elements of a now-fused single system of civil procedure. (17) Fused procedure is predominantly equitable. But if one looks beyond procedure, equity's triumph is less clear. Few remember now precisely what equity contributed to fused procedure and, more importantly, why equity's procedures, pre-fusion, took the shape they did in contradistinction to those prevailing at law.

      More troubling, fusion has spilled the embankments that were supposed to contain it. Procedural fusion has obscured distinctions between law and equity in substantive and remedial doctrine. In other work, one of us has examined the impact of collective amnesia about equity on remedies while arguing that recent Supreme Court jurisprudence might stimulate renewed appreciation of the distinctive functions performed by equitable remedies. (18) In this Article, we turn our attention to the interplay between what would now be called substantive equity, remedial equity, and procedural equity.

   2. Blackstone and Roman Law

      One way in which fusion has obscured distinctions between law and equity lies in the tendency to assimilate equitable bases for equitable relief with legal bases for legal relief. Over the last two centuries, especially due to the influence of Blackstone, Roman law thinking about the structure of civil liability has shaped the common law. (19) That idea of a deontic structure has also come increasingly to grip our thinking about...