Home > Journals > LAWREVIEW > Vol. 96 > No. 2 (2023)
In recent decades, the Supreme Court has showed enhanced interest in equitable principles and remedies. What began as periodic cases featuring one jurist’s idiosyncratic and sometimes misguided interpretations has manifested a broader, significant trend. A consequential theme emerges across varied cases: a revival in the Court’s emphasis on the jurisprudence of equitable remedies. The Court’s recent and current docket continues this momentum. Scholars are tracking the developments and advocating for a system of equity; focusing on historical constraints and federal equity power; and generating a restitution revival.
What happens when obstacles foreclose claims and threaten to leave parties without adequate relief? Or, when the cause of action escapes conventional classification? Or, when Supreme Court decisions frustrate private litigation causing pressure for public enforcement by agencies? Or, when individuals engage in novel forms of wrongdoing that the law may fail to reach? It becomes hard to resist the siren call of equity and its powerful remedies. This trend includes sweeping national injunctions, constructive trusts, and more. Disgorgement is also one such remedy, and its popularity is rising in terms of private and public applications and challenges. It is a gain-based profits remedy rooted in both restitution law and equity power. My earlier work focused on private law implications of this powerful form of relief, including its ability to fill gaps between common law causes of action. That research identified dangers including exceeding unjust enrichment’s purpose by punishing without punitive power and without proper procedural guards. Without restraint, the remedy threatens to destroy. With restraint, disgorgement holds promise for capturing unjust gains and deterring egregious wrongs.
Of course, equity doesn’t hold allure for all. Or, more specifically, skepticism and misunderstanding surrounds equitable remedies, equitable defenses, and enduring equitable principles. Equity at its worst risks being unbounded, arbitrary, unpredictable, and unfair. However, development of equity and corrective measures introduces limits to address equity’s primary flaws. Modern skepticism about equity is likely more about disinterest than opposition to equitable principles. Disinterest stems from the assumed irrelevance of equity in modern civil litigation because of the almost total elimination of separate courts of equity in the United States. Procedural reforms streamlined civil procedure to merge law and equity. A common misperception is that the erasure of separate courts and the procedural merger of law and equity means that equity has vanished. This myth leads to an assumption that there is no need to understand equity, but this logic is wrong. The law-equity distinction remains critical in the determination of rights to a jury trial versus discretionary judge-based determinations. Equitable defenses remain a part of a modern equitable system. They also continue to thrive as shields from equitable remedies. Some advocate complete fusion of equity into law for a more functional and less anachronistic legal system. Still, the import of equity remains. Modern equity is on the rise, and it is ripe for continued refinement.