Scholarly Commons @ UNLV Boyd Law Scholarly Works Faculty Scholarship 2003 Traditional Equity and Contemporary Procedure Thomas O. Main University of Nevada Las Vegas -- William S. Boyd School of Law Follow this and additional works at: https://scholars.law.unlv.edu/facpub Part of the Civil Procedure Commons, Jurisprudence Commons, and the Legal History Commons Recommended Citation Main, Thomas O., "Traditional Equity and Contemporary Procedure" (2003). Scholarly Works. 740. https://scholars.law.unlv.edu/facpub/740 This Article is brought to you by the Scholarly Commons @ UNLV Boyd Law, an institutional repository administered by the Wiener-Rogers Law Library at the William S. Boyd School of Law. For more information, please contact [email protected]. Copyright © 2003 by Washington Law Review Association TRADITIONAL EQUITY AND CONTEMPORARY PROCEDURE Thomas 0. Main* Abstract: This Article offers extensive background on the development and eventual merger of the regimes of law and equity, and suggests that the procedural infrastructure of a unified system must be sufficiently elastic to accommodate the traditional jurisdiction of equity. As the Federal Rules of Civil Procedure become increasingly more elaborate and technical, strict application of those procedural rules can generate mischievous results and hardship. This Article suggests that equity remains a source of authority for district judges to avoid the application of a procedural rule when technical compliance would produce an inequitable result. A separate system of equity provided a forum for hardship created by the procedures of the common law system. Because the jurisdiction of equity was preserved by the procedural merger of law and equity, mischief and hardship created by the contemporary procedures of a unified system of law and equity need not be tolerated and may be corrected in a manner consistent with traditional principles of equity. "Let judgment run down as waters, and righteousness as a mighty stream."' Much of the grand history of Anglo-American law could be characterized as an epic struggle between the regimes of law and equity.2 The roots of this conflict run deep and straight-to Aristotle, who recognized that universal laws could promote injustice as well as justice, Assistant Professor of Law, University of the Pacific, McGeorge School of Law. I wish to thank Professors Greg Pingree, Kevin Stack, and Peter Nicolas for their insights and comments on an early draft. And I wish to thank my student-colleagues Grant Wahlquist, Mat Larsen, and William Diedrich for their able research assistance. This work was supported by the law school's generous summer research grant, for which I am grateful. 1. Amos 5:24. See also WILLIAM SHAKESPEARE, THE MERCHANT OF VENICE, act 4, sc. 1, lines 184-87 ("The quality of mercy is not strain'd / It droppeth as the gentle rain from heaven / Upon the place beneath. It is twice blest: / It blesseth him that gives and him that takes."); 2 THE WORKS OF JOHN MILTON 307 (F. Patterson ed., 1931) ("temper... Justice with Mercie"). 2. See generally ROSCOE POUND, AN INTRODUCTION TO THE PHILOSOPHY OF LAW 54 (rev. ed. 1954) ("Almost all of the problems of jurisprudence come down to a fundamental one of rule and discretion, of administration of justice by law and administration of justice by the more or less trained intuition of experienced magistrates."); KENNETH C. DAVIS, DISCRETIONARY JUSTICE: A PRELIMINARY INQUIRY 17 (1969) ("Every governmental and legal system in world history has involved both rules and discretion. No government has ever been a government of laws and not of men in the sense of eliminating all discretionary power. Every government has always been a government of laws and of men."); RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE 24-25 (1990) ("[F]or more than two millennia, the field of jurisprudence has been fought over by two distinct though variegated groups. One contends that law is more than politics and in the hands of skillful judges yields ... correct answers to even the most difficult legal questions. The other contends that law is politics through and through and that judges exercise broad discretionary authority."). See also BARBARA J. SHAPIRO, PROBABILITY AND CERTAINTY IN SEVENTEENTH CENTURY ENGLAND: A STUDY OF THE RELATIONSHIPS BETWEEN NATURAL SCIENCE, RELIGION, HISTORY, LAW, AND LITERATURE 163-93 (1983). HeinOnline -- 78 Wash. L. Rev. 429 2003 Washington Law Review Vol. 78:429, 2003 and thus fashioned a notion of juridical equity to temper the strict application of laws.3 Equity moderates the rigid and uniform application of law by incorporating standards of fairness and morality into the judicial process.4 Equity assures just results in each application of strict law and eliminates the need for elaborate legislative drafting to contemplate all conceivable applications.5 Naturally, there exists some tension between the two regimes: law ensures strict uniformity and predictability, while equity tempers law to offer relief from hardship.6 Yet although there is tension between the two regimes, they are also 3. Aristotle's jurisprudential philosophy of equity unfolds in a sequence of his ethical works: Magna Moralia, in THE WORKS OF ARISTOTLE (W.D. Ross trans., Oxford at the Clarendon Press 1925); Nichomachean Ethics, in THE WORKS OF ARISTOTLE (W.D. Ross trans., Oxford at the Clarendon Press 1925); and Art of Rhetoric, in 2 THE WORKS OF ARISTOTLE 593-675 (W. Roberts trans., Encyclopedia Britannica 1952), See generally Anton-Hermann Chroust, Aristotle's Conception of "Equity" (Epieikeia), 18 NOTRE DAME L. REV. 119 (1942-1943); MAX HAMBURGER, MORALS AND LAW: THE GROWTH OF ARISTOTLE'S LEGAL THEORY 96 (1965); HENRY SUMNER MAINE, ANCIENT LAW 62 (E.P. Dutton & Co. 1910) (1861); GEORGE C. CHRISTIE, JURISPRUDENCE 4-77 (1973). The roots of a broader concept of equity, of course, run deeper still: notions of mercy, grace, clemency and forgiveness have existed throughout recorded history. See generally History of the Peloponnesian War, in 3 THUCYDIDES 37-40 (Richard Crawley trans., Encyclopedia Britannica 1952); The Laws, in THE DIALOGUES OF PLATO 757d-e, 736d-e, 875c (Benjamin Jowett trans., Encyclopedia Britannica 1952); The Statesman, in THE DIALOGUES OF PLATO 294a (Benjamin Jowett trans., Encyclopedia Britannica 1952); GEORGE SPENCE, THE EQUITABLE JURISDICTION OF THE COURT OF CHANCERY 326 (1846) (associating the royal prerogative with sovereignty itself). 4. Equity presupposes that certain applications of law can frustrate the laws of nature, the administration of "justice," or the common good. See Anton-Hermann Chroust, The "Common Good" and the Problem of "Equity" in the Philosophy of Law of St. Thomas Aquinas, 18 NOTRE DAME L. REV. 114, 117 (1942-1943) ("Equity does not intend to set aside what is right and just, nor does it try to pass judgment on a 'strict Common Law rule' by claiming that the latter was not well made. It merely states that, in the interest of a truly effective and fair Administration of Justice, the 'strict Common Law' is not to be observed in some particular instance."); Colin P. Campbell, The Court of Equity-A Theory of its Jurisdiction, 15 GREEN BAG 108, 111 (1903) (Equity can "recognize and enforce principles which actually govern society in general, whether embodied in the so-called rules of law or not."). See also infra notes 87-98 and accompanying text. 5. See generally Campbell, supra note 4, at 111-12 ("No set of prohibitive or declaratory words which the ingenuity of legislatures or courts can devise will do justice in all cases or will provide for all situations. Hence, both the statutes and the opinions must some time fall short in future cases of that which the peculiar demand of the occasion requires."). See also ROSCOE POUND, "TOWARD A NEW JUS GENTIUM," IDEOLOGICAL DIFFERENCES AND WORLD ORDER 1, 9 (1949) ("Men with very different conceptions of the social order, groups of men with one ideal or picture of what ought to be and other groups with wholly divergent pictures, must live together and work together in a complex social organization."). 6. See infra notes 86-90 and accompanying text. HeinOnline -- 78 Wash. L. Rev. 430 2003 Equity and Procedure complementary, and for centuries separate systems of law and equity combined to administer the laws with both certainty and discretion.7 The image of separate systems of law and equity is, however, an increasingly fading memory. In the middle of the nineteenth century, procedural codes merged law and equity into a single unified system in most American state courts.8 The Judicature Acts of 1873 and 1875 accomplished much the same for law and equity courts in England.9 Since 1938 the federal district courts of the United States have recognized one merged form of action under the Federal Rules of Civil Procedure.' Under these unified systems, memories of a divided bench have receded into the past." Law schools have eliminated the separate course in Equity, 2 and all that remains of separate systems of law and 7. See FREDERIC WILLIAM MAITLAND, EQUITY AND THE FORMS OF ACTION 17 (Chaytor ed. 1909) ("[F]or two centuries before the year 1875 the two systems had been working together harmoniously."). See also infra notes 81-85 and accompanying text. 8. See infra notes 213-34 and accompanying text. 9. See 1873, 36 & 37 Vict., c. 66 (Eng.); 1875, 38 & 39 Vict., c. 77 (Eng.). See also infra notes 284-88 and accompanying text. 10. See FED. R. Civ. P. 2 ("There shall be one form of action to be known as 'civil action."'). See also infra notes 235-83 and accompanying text. I1. See generally Mertens v. Hewitt Assocs., 508 U.S. 248, 256-57 (1993) (construing a statutory reference to "equitable remedies" and stating "memories of the divided bench, and familiarity with its technical refinements recede into the past").