Equity's Atrophy

Current U.S. law sees numerous decisions from which a once- predictable, traditional equitable corrective has simply disappeared. The salient cases are those in which, until recently—recent history for this purpose comprising just one or two generations of lawyers and judges—equitable intervention would have been at least highly likely: because the unmodified legal outcome diverges so plainly from equity and good conscience, and because an established equitable response was part of what everybody knew. The idea that equity in U.S. law has been losing some previous degree of vitality is so venerable that it can scarcely be debatable at this point,11 and in the present discussion it will be treated as self-evident. Rather the object will be to consider briefly some illustrations, and some possible explanations, of the current equity deficit.

The nature of the deficit will be apparent from a handful of examples. The cases are selected for purposes of demonstration, not as a representative assortment: the object is to offer unmistakable illustrations, not a survey. The problem cases are all commercial in character—a fact that suggests one part of the explanation—and their difficulties seem to stem from the same general sources. These obstacles to the exercise of traditional equity are interrelated and overlapping, to the point that it will be somewhat artificial to distinguish them.

Still they may be classified for convenience as (1) simple ignorance; (2) a loss of trust in the ability of judges to exercise the necessary discretion; and (3) an explicit preference for form over substance in the attitudes of commercial lawyers.