Revisiting equity jurisprudence in a comparative context: learning from India's interpretative framework.

• Published date: 22 March 2016
• Author: Gadkar-Wilcox, Sujata
• Date: 22 March 2016

Abstract

The recent case of Floyd, et al. v. City of New York, et al., raises important questions about the nature and function of judicial equity power. In August 2013, the Honorable Shira Scheindlin ruled that the New York Police Department systematically violated the United States Constitution by engaging in racially discriminatory stop and frisk practices. Accordingly, the court ordered a series of very extensive equitable remedies to address the discriminatory practice, including the appointment of an independent monitor; a specific performance order mandating immediate reforms to stop and frisk practices; a joint remedy and mediation process involving community stakeholders; and an NYPD pilot program implementing the utilization of body-worn cameras by patrol officers. The decision reopened the debate regarding the scope and reach of equity jurisprudence. In the United States, the equity debate has been subject to opposing schools of thought centering on the doctrine of expansive equity and the proper role of remedial power in contemporary legal jurisprudence. When we turn our attention to jurisdictions struggling with similar tensions between the rule of law and the need to remedy systemic inequality, we gain some useful insight into the role of differing epistemological frameworks in creating alternative methods of finding the proper balance. A comparison to the Indian context is particularly useful given the intentionality with which the Supreme Court of India has expanded the equity power to remedy social injustice. The Supreme Court of India has actively expanded its equity jurisprudence to creatively adjudicate and elaborate on fundamental rights. The Supreme Court of India has rejected mechanical rule-bound adjudications, viewing them as a way for judges to insulate themselves from accountability for their decisions and from the social impact of those choices, broadly interpreting equity jurisprudence. A comparative analysis of equity jurisprudence underscores the importance of interpretation in the construction of legal jurisprudence. While the U.S. Supreme Court's analysis operates largely within a positivist framework, the activism of the Supreme Court of India resonates with feminist legal analysis by prioritizing lived experience over objective abstractions. In other words, the Supreme Court of India frames legal questions in a way that emphasizes the individual and recognizes that judges may use appropriate discretion in crafting equitable remedies for those who face systemic vulnerabilities. Thus, comparative legal analysis offers us pathways to reassess our interpretive priorities.

INTRODUCTION

On August 12, 2013, United States District Court Judge for the Southern District of New York, the Honorable Shira A. Scheindlin, held that the City of New York violated the Fourth and Fourteenth Amendments of the United States Constitution by promulgating a "stop and frisk" policy that had a disparate impact on racial minorities. (1) Moreover, the court held that "senior officials in the City and the NYPD were deliberately indifferent" about the effects of this policy, and that these unconstitutional effects were "sufficiently widespread that they had the force of law." (2)

Though this opinion was the subject of considerable press coverage, equally notable was Judge Scheindlin's opinion on the extensive remedies required to address these violations--a remedy that combined the violations found in the Floyd case with those found in the related Ligon case, which declared that an NYPD policy of frisking, questioning, and in some cases arresting people for trespass outside of certain public buildings violated the Fourth Amendment. (3) Judge Scheindlin ordered the appointment of a monitor to oversee reforms of the NYPD and conduct compliance reviews and a facilitator to help ensure that these reforms were carried out; (4) the revision of training manuals to eliminate racial profiling and other constitutionally impermissible language; (5) the description of all stops by police in their activity logs; (6) the increase of supervision, monitoring, and discipline of officers involved in stop and frisk activity; the more effective communication of this requirement to the officers; (7) the requirement that officers wear body cameras to monitor their activity; (8) and, perhaps most significantly, the implementation of a "joint remedial process" under which members of the NYPD would meet with a number of interested community organizations and hold town hall meetings with citizens in the effected areas to try to facilitate community healing. (9)

The breadth of Judge Scheindlin's findings and her remedies were the subject of nearly immediate debate, both in the popular press and among legal scholars. (10) The sweep of the decision, Lawrence Rosenthal claimed, imposed such a burden that it essentially created a "federal judge-run NYPD" that would simply keep police officers from enforcing the law at all, forcing them to "stay in the doughnut shops." (11) The controversy continued in October 2013 when a three-judge panel of the United States Court of Appeals for the Second Circuit stayed Judge Scheindlin's order. (12) The panel found that Judge Scheindlin, in statements pertaining to a related matter, had "run afoul" of two of the canons of the Code of Conduct for United States Judges by improperly encouraging the plaintiffs to initiate a lawsuit and by improperly defending herself in the media in response to the intense scrutiny that accompanied her rulings. (13)

By 2014, due to a change in political circumstances, the controversy over the Ligon and Floyd cases had largely subsided. Under the leadership of a new mayor, Bill de Blasio, the City of New York indicated an interest in shelving the appeals and settling the lawsuits over the stop-and-frisk policy. (14) On January 30, 2014, the Acting Corporation Counsel of the City of New York, Jeffrey Friedlander, filed a motion to partially remand the case back to the District Court for this purpose, and on February 21, 2014, the Second Circuit Court of Appeals agreed, releasing the stay and remanding the case back to the District Court. (15) On April 3, 2014, the City of New York and the plaintiffs in the Floyd and Ligon cases came to the mutual agreement that Judge Scheindlin's Remedial Order would be accepted so long as the Court-appointed monitor could be appointed for a limited three-year term, rather than serving indefinitely until all violations had ceased, as was called for in Judge Scheindlin's original order. (16) On July 30, 2014, Judge Analisa Torres, who had been randomly selected by the Second Circuit to replace the removed Judge Scheindlin, denied a motion to intervene to stop the settlement between the city and the plaintiffs from going forward, a motion that was filed on behalf of the New York City Police Unions. Judge Torres found that the Police Union lacked standing and that their motion was not timely. (17)

Though the Ligon and Floyd cases may have fallen out of the headlines, the months of intense scrutiny served to highlight the debate on the role of equitable remedies and the nature and limits of the power of the federal courts. In the United States, this debate has centered on the depth and scope of the remedial powers within the historical and contemporary understandings of equity jurisprudence. (18) The jurisdiction conferred on the federal courts to entertain suits in equity is derived from the English Court of Chancery and associated with "higher notions of justice and the chancellor's conscience." (19) Both historical and contemporary understandings of federal equity jurisprudence refer to "a set of rights, remedies, and procedures available ostensibly to ameliorate defects of the common law." (20) Equitable remedies were not traditionally available if there were an adequate remedy at law. However, remedies such as specific performance, injunctions, and accountings filled the gaps for which substantive common law failed to account. (21)

In connection with the redress of policies of discrimination, the contemporary debate on equity power is connected to a long history of efforts by the U.S. Supreme Court to enforce its desegregation rulings. Moreover, the limits and extent of the remedial power continue to be issues that divide the Court. On the one hand, federal equity powers are claimed to be jurisdictional powers that are limited "to those which would remedy a constitutional violation-nothing further." (22) On the other hand, they have also been held to "reflect equitable common sense." (23) While the debate continues, the trend is clear: the Supreme Court of the United States ("U.S. Supreme Court") has gradually restricted the use of equity powers to redress racial discrimination since the zenith of their use in the 1960s and 1970s. While the federal courts, pursuant to a more expansive approach to equitable remedies, may have crafted extensive and interventionist remedies, they were ultimately applied to an institutional practice that was narrow in scope. The Court used equity power to either end the de jure aspects of a constitutional violation or to restore the members of a class to the same position they would have held absent the constitutional violation. (24) When looking at recent majority opinions on equitable remedies, "one could reasonably conclude" that expansive federal equity power "has ceased to exist." (25) Regardless of the scope of equitable powers in United States jurisprudence, one thing remains clear: the general trend and permissible use of the U.S. Supreme Court's equity power has been understood to be limited to individualistic and aberrant transgressions, often carried out by the state, as a solution to the resulting inequity. This epistemological position does not account for the broader systemic and societal components constitutive of an underlying structural inequality.

When the U.S. Supreme Court's hesitance to...