Equity

Equity as Meta-Law

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Post by Henry Smith  A paper of mine on equity long in the works (and under different titles) is now out as Henry E. Smith, Equity as Meta-Law, 130 Yale L.J. 1050 (2021). Here is the abstract: With the merger of law and equity almost complete, the idea of equity as a special part of … Read more

Retroactive Rights of Action

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By Samuel Beswick, Assistant Professor, Peter A. Allard School of Law, The University of British Columbia I recently suggested on Balkinization that a storm seems to be brewing concerning the place of non-retroactivity doctrine (also called the doctrine of “prospective overruling”) in federal law. Non-retroactivity doctrine attempts to define the temporal scope of novel judgments … Read more

Oxford Studies in Private Law Theory (Miller & Oberdiek eds.) — Call for Papers

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Oxford University Press is pleased to announce the launch of Oxford Studies in Private Law Theory, edited by Paul Miller (Notre Dame) and John Oberdiek (Rutgers), and to issue a call for papers for the first volume.  Oxford Studies in Private Law Theory is a series of biennial volumes showcasing the best article-length work across private law … Read more

Equitable Defences as Meta-Law

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Post by Henry Smith To those interested in equity (who isn’t?) and private law defenses, let me offer “Equitable Defences as Meta-Law,” which will be published by Hart this May in Defences in Equity, edited by Paul S. Davies, Simon Douglas, and James Goudkamp.  It can be found at SSRN here.  The chapter shows how … Read more

Yale Law School, Private Funds Conference — Sadie Blanchard

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Post by Sadie Blanchard The Yale Law School Center for Private Law will host the Private Funds Conference: Private Equity, Hedge Funds, and Venture Capital on November 17, 2017. The conference will bring leading theorists from law, economics, finance, and sociology into dialogue with people with experience at the highest levels of experience with private funds, … Read more

Harvard Law School’s Private Law Workshop: Patricia McMahon, The Interplay Between Nineteenth Century Codes and the Fusion of Law and Equity

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Post by Patrick Goold

Codification of the common law and the fusion of law and equity were two of the most prominent law reform efforts of the nineteenth century. Legal historians have, however, rarely considered the connection between these two movements. At a recent Private Law Workshop, Patricia McMahon tried to map out the interplay between the fusion and codification movements of nineteenth century New York and England. McMahon finds that while often fusion and codification mutually supported each other, there was an inherent tension between the two goals, and this tension has continued relevance for today.

On one level, fusion was a boon to the codification movements. In New York, procedural fusion was accomplished in 1848 with the adoption of the New York Code of Civil Procedure, also known as the Field Code after its principle architect David Dudley Field. Field believed that the codification of procedure was the best way to transition from separate systems of law and equity to one single court. The success of the Field Code for legal procedure proceeded to serve as an example that codes and codification was a realistic possibility. In both New York and England, those wishing to codify the substantive common law pointed to Field’s Code as proof that codes worked!

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“Channeling” District Court Discretion in IP and Beyond — John Golden

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Post by John Golden

In both a patent case and a copyright case from soon-to-end October Term 2015, the U.S. Supreme Court continued a long struggle to define the proper bounds of trial court discretion in various contexts. See generally Henry J. Friendly, Indiscretion About Discretion, 31 Emory L.J. 747, 748–50 (1982). Such questions of trial court discretion commonly relate to questions about the proper nature of equity or equity-like reasoning in district court decision-making, questions that are presumably of interest to a number of readers of this blog.

Questions about trial court discretion have recently had particular prominence in patent law. In this area, an ever-growing string of Supreme Court decisions has, over the course of a decade, rejected what the Court has perceived as excessively rigid rules developed by the U.S. Court of Appeals for the Federal Circuit. See David O. Taylor, Formalism and Antiformalism in Patent Law Adjudication: Rules and Standards, 46 Conn. L. Rev. 415, 464–65 (2013). The newest addition to the string came in June in Halo Electronics, Inc. v. Pulse Electronics, Inc., 136 S. Ct. 1923 (2016). In an opinion by Chief Justice Roberts, the Court rejected as “unduly rigid” a Federal Circuit rule permitting the enhancement of patent damages for willful infringement only when the infringer’s conduct was objectively reckless with respect to violation of relevant patent rights. Id. at 1932 (internal quotation marks omitted).

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Apologies as Tort Reform — Yonathan Arbel

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Post by Yonathan Arbel

When we wrong others, there is often an expectation—perhaps a moral duty—that we apologize. By apologizing, the wrongdoer asserts ownership of the wrong and acknowledges the wrongness of the act and the moral standing of the victim. It is also said that apologies can help restore the social order disrupted by the wrong.

In recent decades, many scholars have suggested that there should be a place in the law for apologies. And so the idea of ‘apology laws’ – laws that promote and protect the use of apologies – was born. These laws, now found in 36 states, are meant to encourage wrongdoers to apologize without fear of legal repercussions, and they typically apply in private law settings, such as torts and medical malpractice. A paradigmatic example is a doctor who makes a mistake during surgery but, in the absence of a ‘safe harbor’, would be reluctant to apologize for fear that admitting the mistake would foster litigation and count as an admission of liability.  An apology law that makes apologies inadmissible as evidence of fault at trial, as most do, promises to overcome this barrier.

In a new paper, Tort Reform Through the Backdoor: A Critique of Law & Apologies, (Forthcoming S. Cal. L. Rev., 2017), Yotam Kaplan and I are challenging the predominant scholarly disposition favoring laws that create safe harbors for apologies. We argue that in commercial settings—involving insurance companies, large firms, hospitals, etc.—using the law to encourage apologies may undermine tort liability and undercut deterrence. This effect is not necessarily negative—many people believe that the tort system is out of control—but it does mean apology laws are de-facto tort reform. That many states that normally oppose tort reform adopted apology laws was the result of clever marketing and concentrated lobbying efforts by tort reformers who co-opted the legal discourse on apologies to their own ends. Perhaps most notably, Barack Obama and Hillary Clinton—neither of whom is a card-carrying tort reformer—advocated actively for apology laws in an article in The New England Journal of Medicine.

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Is Equitable Contract Law a Pipe Dream? — Henry Smith

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Post by Henry Smith

At last month’s American Law and Economics Annual Meeting, I attended a very interesting session on Commercial Law and Contracts, at which the first two papers were in tension with each, as were their authors – in a polite way!  The first was “The Common Law of Contract and the Default Rule Project,” by Alan Schwartz and Bob Scott.  They argue that the program over the last century by academics, codifiers, and Restaters (“drafters”) to supply transcontextual defaults rules that apply in a wide variety of contracts was doomed to fail. Common law contract supplied a limited number of defaults that do have this feature, such as expectations damages for breach of contract.  Going beyond these traditional rules faced the drafters with a dilemma.  They did not have knowledge enough to supply defaults that would make sense for particular industries.  So they chose the transcontextual route, but to create additional defaults here required them to fudge the content, opting for fuzzy or underspecified standards based on custom and reasonableness, and commercial parties have not been receptive to these efforts, often opting out of them. 

Source: http://firstyearcontracts.blogspot.com/2010/03/estate-of-mr-george-edward-kent-man-who.html

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Defences in Unjust Enrichment, Book Review — Yotam Kaplan

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Post by Yotam Kaplan, Private Law Fellow, Harvard Law School

Defences in Unjust Enrichment, edited by Andrew Dyson, James Goudkamp and Frederick Wilmot-Smith, is the recently published second volume in an ongoing series, Hart Studies in Private Law: Essays on Defences. The first volume covered defenses in tort law, and the remaining two volumes will treat defenses in contract law and equity. The current volume offers essays by some of the world’s leading scholars, and a memorable note by Lord Reed of the Supreme Court of the United Kingdom. This is a welcome addition to unjust enrichment scholarship, as the study of defenses (and the change of position defense in particular) has been central to the development of this area of law in recent years. 

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Legal Remedies and Laches in a Statutory Regime: The Federal Circuit Distinguishes Patent from Copyright — John Golden

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Post by John M. Golden

What place do distinctions between law and equity have in modern law?  In the United States, answering this question can be complicated by not only a twentieth-century merger of law and equity under the Federal Rules of Civil Procedure, but also the frequent embedding of common-law principles within a substantive statutory regime.  The subject has attracted scholarly attention.  A forthcoming article by Sam Bray of the UCLA School of Law argues that the U.S. Supreme Court has properly emphasized distinctions between legal and equitable remedies in modern U.S. law.

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The Hidden Equitable Langdell – Henry Smith

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langdellPost by Henry Smith

As Shyam mentioned in his post of May 8th, Christopher Columbus Langdell is widely taken to be the archformalist of the nineteenth century and Exhibit A of a deplorable “Classical Legal Thought” with its would-be deductive “science” of law. Recently, commentators such as Tony Sebok and Brian Tamanaha have argued that the formalist era was not as formalist is it appeared. Mostly the controversies over this revisionism swirl around realist-sounding pronouncements of courts and commentators of the common law in the late nineteenth and early twentieth centuries.

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