Yearly Archives: 2016
Jul 8, 2016 Tom SimmonsElder Law
Rebecca Dresser’s A Fate Worse than Death? article raises profound questions. Scientists have known for some time that certain biomarkers (specifically, elevated tau and beta-amyloid levels) correlate with elevated risks for Alzheimer’s disease. Soon, patients may learn about their own increased probabilities for developing this deadly and dehumanizing disease. This knowledge might cause these patients to adopt advance directives that reject spoon-feeding upon the arrival of advanced dementia. Some preemptive suicides may result. Dresser considers whether we should endorse or recoil from these responses.
Dresser’s analysis anticipates a time when biomarker information relative to Alzheimer’s disease risks is routinely made available to asymptomatic patients. Whether to disclose Alzheimer’s disease biomarker results is still controversial. The tests are imperfect. Dresser examines a study of 311 participants that revealed an eleven to twenty-six percent chance of developing Alzheimer’s disease within five years based on elevated tau and beta-amyloid levels. Many individuals with biomarkers for Alzheimer’s never develop Alzheimer’s (perhaps due to mortality from other causes, perhaps due to other protective factors). Scientists still lack a clear understanding of the relationship between neuropathological patterns and the clinical occurrence of Alzheimer’s disease. Because the tests for pre-symptomatic Alzheimer’s remain unproven, some experts assert that the tests should be deployed only in a research context. With patient demand, however, more and more people are likely to learn their biomarker results in the years to come. Their likely responses lead us to critical legal questions.
Individuals may respond to news of any terminal illness by making more extreme advance directive selections. Some may even consider self-destruction. But a diagnosis of Alzheimer’s disease gives rise to unique considerations. A person with cancer can defer serious thoughts of suicide until the disease overtakes her. An individual with Alzheimer’s disease (or other similar neurological decay) might conclude that she cannot afford a wait and see approach. “Suicide takes relatively sophisticated planning, as well as a strong commitment,” Dresser explains. (P. 658.) As Alzheimer’s progresses, cognition is compromised. The capacity for self-destruction may itself be destroyed, or the individual “may lose interest in doing so.” (Id.) Therefore, persons with an Alzheimer’s diagnosis or a biomarkers prediction are more likely to consider preemptive suicide.
Policymakers should discourage suicide based on Alzheimer’s disease biomarker predictors, Dresser asserts. As a legal matter, it’s an uncontroversial assertion: The great majority of states still criminalize assisted suicide. Those that permit it carefully constrain its availability to narrow sets of circumstances and impose significant government oversight.
Dresser’s more stilling query is whether we should permit competent individuals with positive Alzheimer’s disease biomarkers greater authority over their future care than the law currently recognizes. Advance directives derive from the basic right to refuse unwanted invasive medical treatment. Advance directives instruct care providers, in advance of a later incapacity, to withdraw life-sustaining treatment in the event of a vegetative or terminal condition. An advance directive becomes operative at a point in time when the patient is unable to make or communicate a healthcare decision. (Prior to that time, the patient retains autonomy over her own healthcare decisions by simply communicating her preferences, idiosyncratic or not, to her doctors.)
The varieties of artificial means of life support that are typically addressed in an advance directive (and authorized by the Uniform Health-Care Decisions Act) include antibiotics, chemotherapy, and mechanical respiration. An advance directive can also document an individual’s refusal of nutrition delivered intravenously (“tube feeding”). Tube feeding is a kind of medical treatment. Typically, it is delivered through the abdomen. State laws often clarify that tube feeding may not be withdrawn (even if the pre-incapacitated patient directed) when withdrawal would cause discomfort. Palliative care is one exception to the breadth of advance directives recognized by state law.
Aside from comfort concern limitations, state laws honor the advance refusal of tube feeding. Dresser considers whether an advance refusal of assisted feeding should also be recognized. In some instances, withholding food and water is medically appropriate because the patient has difficulty swallowing, chokes, or experiences discomfort when eating. No court or state legislature has yet considered advance refusal of sustenance by oral feeding. With the projected increasing ability of individuals to assess their own likelihood of experiencing the cognitive decay associated with Alzheimer’s disease via biomarker tests, more and more patients may include assisted spoon-feeding among the treatments they refuse in the text of an advance directive.
Because spoon-feeding is not as invasive as other medical procedures, it is unlikely that a court would find it to be a constitutional liberty interest. Cruzan v. Missouri (U.S. 1990) recognized an incapacitated person’s liberty interest in a pre-incapacity refusal of medical treatment. Government “invasions into the body” are repugnant to substantive due process, emphasized Justice O’Connor, concurring. Spoon-feeding cannot be characterized as a bodily invasion, so there would seem to be no constitutional imperative to give effect to an advance refusal of oral feeding assistance. Recognition would have to come in the form of expansions to state advance directive statutes.
Is the difference between intravenous feeding and assisted feeding only a matter of degree? Perhaps the difference represents a fundamental matter of personal autonomy – where moral considerations shift from the pre-incapacity articulated preferences of an individual to what the majority sees as being in that individual’s best interests. Perhaps not. Perhaps we should consider measures that give effect to individuals’ pre-dementia directions regarding spoon-feeding. Dresser, a Professor of Law as well as a Professor of Ethics in Medicine at Washington University in St. Louis, believes that “[t]he availability of [Alzheimer’s disease] biomarker tests could increase public support for such measures.” (Pp. 666-67.) Professor Dresser’s short article raises important questions that we will likely face with increasing frequency in the near future. “How to die” may become the next fundamental debate in elder law.
Jul 4, 2016 Felix MormannEnergy Law
Today’s electricity sector has little in common with the industry’s humble origins in the late 1800s, when small power plants located every ten blocks or so served nearby customers through a local grid. Nor does it share many commonalities with the heavily regulated, largely monopolized electricity sector of the 1930s, whose interstate grid prompted passage of the 1935 Federal Power Act. And yet, this more than eighty-year-old statute continues to define the requirements and scope of federal and, indirectly, state regulatory authority over today’s electricity sector. As deregulation and competitive markets, the rise of renewable energy, smart metering, and demand response transform the way electricity is generated, traded, transmitted, and used, regulators and courts are struggling to apply the Federal Power Act to a changing industry.
Earlier this year, the Supreme Court offered its views when, in Federal Energy Regulatory Commission v. Electric Power Supply Association, the Court recognized federal authority to regulate wholesale market operators’ compensation of demand response—temporary reductions in electricity consumption by end-users at times of peak demand. In his thoughtful article FERC’s Expansive Authority to Transform the Electric Grid, Professor Joel B. Eisen places FERC v. EPSA in historical context, proposes a set of principles to guide FERC’s regulation of rules and practices that affect rates in wholesale power markets, and applies these principles to a hypothetical carbon price added to fossil-fueled electricity.
In FERC v. EPSA, a 6-2 majority of the Supreme Court reversed the D.C. Circuit’s vacatur of FERC’s Order No. 745 regarding demand response compensation in wholesale power markets, holding that the order was within FERC’s authority under the Federal Power Act to ensure that rules and practices directly affecting wholesale rates are just and reasonable. EPSA and other critics had previously argued that the Federal Power Act could not be stretched to apply to wholesale market compensation for demand response—a concept clearly not contemplated during the Act’s drafting over eighty years ago.
Professor Eisen’s article offers an in-depth historical analysis that contextualizes and, ultimately, supports the Supreme Court’s expansive reading of FERC’s authority under the Federal Power Act. Starting with railroad regulation in the early 1900s—the origin of the Federal Power Act’s “practices affecting rates” language—continuing with regulation of the electric utility industry from the Act’s 1935 passage to the beginning of deregulation in the 1980s, and culminating with regulation of today’s increasingly market-based electricity sector, Eisen examines the regulatory regime’s evolution across two industries and one century. In the process, he identifies “a distinctive arc, featuring flexibility about conduct being regulated” that FERC v. EPSA continues.
But Professor Eisen’s article offers more than historical context and validation for the Supreme Court’s interpretation of the Federal Power Act. Policymakers, regulators, courts, and practitioners will appreciate the four-factor framework that Eisen proposes to guide future application of the Act’s “practices affecting rates” standard for FERC authority. First, to be jurisdictional an activity must involve “FERC regulation of market rules or other aspects of direct participation by jurisdictional entities.” Second, FERC may offer incentives to adjust inputs to markets under its supervision in order to maintain system reliability—even if these input adjustments impact the states. Third, the notion of practices under the Federal Power Act has evolved from firm-specific to market-wide practices, allowing (and, possibly, requiring) FERC to regulate the structure and operation of wholesale electricity markets. Fourth and finally, the activity in question must have “direct and significant impacts on wholesale rates,” that is, “without the actions of an intervening decision maker.” To illustrate the import of his proposed framework, Professor Eisen applies the above factors to a hypothetical FERC-mandated carbon adder for fossil-fueled electricity traded on wholesale power markets, which he suggests could be reconciled with FERC v. EPSA, assuming a proper finding of discrimination.
With FERC’s Expansive Authority to Transform the Electric Grid, Professor Eisen adds to the growing literature on (clean) energy federalism an unprecedented historical analysis of FERC’s authority under the 1935 Federal Power Act and a practical guide for its application to today’s electricity industry. Demand response is but one of many drivers of the grid’s ongoing transformation, with others, such as electricity storage, already waiting in the wings. FERC v. EPSA and Professor Eisen’s fine article suggest that the Federal Power Act is still very much alive and up to the task of guiding the transition to a bright energy future.
Jun 30, 2016 Angela BanksImmigration
International human rights are often described as universal rights. The universality of this legal regime leads many people to view it as an appropriate resource for addressing the plight of undocumented migrants. Yet the legal protections provided within the international human rights regime are often unavailable to undocumented migrants, or the rights that are most important to them are not protected. International and immigration law scholars rarely acknowledge these limitations, which makes Professor Jaya Ramji-Nogales’ article such an important contribution. “The Right to Have Rights”: Undocumented Migrants and State Protection provides an excellent analysis of the limits of international human rights law in protecting undocumented migrants.
Two of the central challenges that undocumented migrants face are vulnerability within their states of residence due to their limited “recourse against exploitation due to fear of deportation” and “the rupture of family and community ties through deportation.” (P. 1050.) The rights to territorial security (by which Ramji-Nogales means the right to remain in one’s state of residence), family unity, and the absence of discrimination due to immigration status are important rights for addressing undocumented migrants’ central challenges.
To examine the ability of international human rights law to address these challenges, Ramji-Nogales uses Hannah Arendt’s critique of human rights law in The Origins of Totalitarianism as a template. Accordingly, Ramji-Nogales explores (1) the fact that sovereign states decide what rights will be protected and how; (2) the idea that certain groups’ rights are exceptional and protected outside of the domestic legal order; and (3) that individuals’ dependence on sovereign states to protect their individual rights limits the ability of international human rights law to protect undocumented migrants. Arendt found these factors hindered protecting the rights of minorities and stateless individuals, and Ramji-Nogales finds the same for undocumented migrants.
First, while international human rights are conceptualized as universal rights, they actually exclude the rights that are the most important to undocumented migrants. International human rights treaties are state-created instruments, and as a result, “sovereignty interests are deeply embedded in these treaties.” (P. 1060.)
Second, undocumented migrants are exceptional and outside of the international human rights regime. In a number of critical ways, international human rights treaties exclude undocumented migrants from protection. For example, no international human rights treaty supports a narrow right to territorial security. The United Nations Human Rights Committee (“HRC”) is the body responsible for interpreting the International Covenant on Civil and Political Rights (“ICCPR”). The HRC has noted that the ICCPR “does not recognize the rights of aliens to … reside in the territory of a State party.” (P. 1051.) The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families “states in no uncertain terms that it does not offer any right to ‘regularization’ for undocumented migrants or their families.” (Id.) The universal claims of the international human rights framework are only plausible if undocumented migrants are understood as being legitimately outside of the system.
Finally, human rights protection depends on state enforcement, and undocumented migrants “have no political voice, and are largely excluded from legal protections in their host states.” (P. 1061.) In order for the international human rights regime to be useful for undocumented migrants, the state protection gap has to be addressed. In a state-created system, state interests significantly shape what substantive rights will be protected and how. Additionally, the enforcement of protected rights depends on having a state act on one’s behalf.
Ramji-Nogales proposes three responses to the state protection gap. First, undocumented migrants could utilize a social movement approach in which they build networks, exchange information, publicize issues that are important to them, and engage in protests. This approach would allow undocumented migrants to “openly challenge the political determinations that define the scope of international human rights law” without relying on the state (P. 1063).
Second, migrant-sending states could demand better treatment of their nationals in receiving states. Undocumented migrants’ home states would discuss the harms their nationals face and work to have receiving states recognize as rights the issues important to undocumented migrants.
Finally, Ramji-Nogales discusses a multilateral approach in which a number of migrant-sending states create a “permanent institution to contextualize the situation of undocumented migrants and advocate for equal treatment.” (P. 1064.) This strategy would differ from current multilateral approaches to coordinate state migration action because it would “aim to radically restructure discussion around the undocumented.” (Id.)
Ramji-Nogales acknowledges the challenges and shortcomings for each of these responses: the coordination challenges involved in organizing a social movement; the comparative power differential between social movements and states; the limited political power of migrant-sending states vis-à-vis receiving states; and the conflicting interests that sending states may have because they simultaneously may be both sending and receiving states.
While none of these responses to the state protection gap offer a guaranteed solution, they begin an important conversation for immigration and international human rights law scholars. Until recently there has been little acknowledgement of the very limited role that international human rights law has been able to play in addressing the needs of undocumented migrants. By identifying specific substantive and institutional challenges, Ramji-Nogales provides a framework that immigration and international human rights scholars and advocates can use to reimagine an international legal regime that is truly universal.
Jun 16, 2016 Marco JimenezRemedies
The division between law and equity has a long and important history in Anglo-American jurisprudence, and one whose effects continue to resonate in American courts to this day. Indeed, whenever I teach remedies, I tell my students that this is an area of law where history still matters—that if they want to understand the difference between legal and equitable remedies, and to know the types of remedies that their clients might be entitled to in a given case, they need to be at least somewhat familiar with the history of the contest between the English courts of law and the Court of Chancery, which was responsible for developing and administering the rules of equity. Why? Because it was the battle over jurisdictional turf that took place between these courts hundreds of years ago that gave rise to a rule (i.e., the irreparable injury rule) that still operates whenever judges are called upon to decide whether an aggrieved party is entitled to an equitable remedy. Specifically, the irreparable injury rule requires that an aggrieved party seeking an equitable remedy (e.g., specific performance of a contract) must show that there is no adequate legal remedy (e.g., money damages) to put it in the position it would have occupied had the wrongdoer not committed its wrong (e.g., breach of contract).
Apart from this history, however, one wonders whether the irreparable injury rule (specifically), or the division between legal and equitable remedies (more generally), can be justified along more functional lines. Many commentators believe that it cannot. Professor Douglas Laycock, for instance, in strong and colorful language, has argued that “[a] rule designed to preserve the jurisdictional boundaries between two courts that have long been merged should die unless it serves some modern purpose.” In fact, Laycock has even claimed that the rule is largely dead, being more honored in the breach than in the observance. But if this is true, one may ask (as my students sometimes do), why do professors still teach the irreparable injury rule, and why do courts still invoke it whenever a plaintiff seeks an equitable remedy? And, perhaps more importantly, since courts of law and equity have long been merged in most jurisdictions, what justification (outside of tradition) can there be for continuing to distinguish between legal and equitable remedies in such a manner? It is in providing an answer to these tough and persistent questions that Samuel Bray’s article, The System of Equitable Remedies, makes an important contribution to the field.
Professor Bray argues that conventional wisdom—which maintains that “the distinction between legal and equitable remedies is outmoded and serves no purpose”—is wrong (P. 530), and that there are good reasons (though rarely articulated by courts) for continuing to distinguish between legal and equitable remedies (P. 533). Specifically, Bray argues that equitable remedies, far from operating as an antiquated counterpart to legal remedies, should be understood as an integrated system made up of three distinct but “logically connected” (P. 534) components: (1) the equitable remedies themselves (e.g., injunctions, constructive trusts), (2) the equitable managerial devices for administering these remedies (e.g., allowing courts to enforce injunctions via the contempt power or to modify and/or dissolve them to reflect changing circumstances), and (3) the equitable constraints to prevent such remedies from being abused (e.g., by allowing the purported wrongdoer to assert such equitable defenses as estoppel or laches).
Although it might seem difficult to justify the jurisdictional boundary between legal and equitable remedies when we are considering only the first-order problem of deciding what remedy to award an aggrieved party—after all, why should an injured party be required to satisfy the irreparable injury rule to get specific performance if that remedy would best protect the party’s expectation?—Bray makes a strong case for doing so when we also take into account “the second-order policy problems that arise from solving the first-order ones: i.e., the additional need to manage compliance and constrain abuse.” (P. 534.) This is largely because courts cannot always afford complete relief to an aggrieved party by simply forcing the wrongdoer to perform a simple and clear-cut act (such as awarding a legal remedy like requiring a wrongdoer to pay money damages or return stolen property). Instead, courts sometimes must require the wrongdoer to perform (or refrain from performing) a more complex action that must be monitored and enforced over time if it is to be effective. Where this is so, courts must not only be given the power to select the most appropriate remedy for a given situation (component #1), but, for this remedy to be effective, courts must also be given the ability to select the most appropriate tools for monitoring the wrongdoer’s compliance with the remedy (component #2) while preventing the aggrieved party from abusing these remedies (component #3). (P. 562.)
For instance, imagine a wrongdoer (“W”) has inadvertently built a retaining wall trespassing on victim’s (“V”) property. Turning to the first component identified by Bray, it seems clear that there would be a number of instances in which it would be more appropriate to enforce V’s rights with an equitable remedy like an injunction (forcing W to remove the retaining wall) instead of a legal remedy like money damages (forcing W to pay for the value of the land taken), in part because it seems inappropriate to force V to involuntarily sell part of his land to W, and in part because we don’t know how much V would have charged W for the land in a voluntary transaction. This much is obvious.
Where Bray’s article really shines is in showing us that, for the court’s injunction to be effective, the court must be able to draw upon the equitable managerial devices (component #2) to effectively police W’s behavior, due to the fact that a lot can go wrong between the time the order is issued and complied with. For instance, W might misunderstand the court’s injunction as requiring him to remove only the retaining wall (but not the footings), or perhaps W might inadvertently destroy an original wall on V’s property while removing the retaining wall. In either case, the equitable remedy can be effective only if the court retains the ability to manage W’s compliance (e.g., through the power of contempt, or by making adjustments to the language of the injunction). Finally, turning to Bray’s third component, it is important for the court to ensure that these remedies—which are extremely powerful, in no small part because they are enforced by the power of contempt—are not abused and “exploited by a wily litigant” (P. 572) seeking to use them in an inequitable fashion.
For instance, suppose V sat by and observed as W inadvertently built the retaining wall on V’s property, and that the wall, once built, turned out to be very costly to remove. Despite W’s wrong, wouldn’t we want courts to take into account V’s knowledge of W’s action (component #3) before deciding upon the most appropriate remedy (component #1), especially since W may be found in contempt for failing to comply with a court order requiring W to remove the retaining wall (component #2)? In short, Bray convincingly shows that each component in the equitable system operates together, and must be considered together, if the equitable remedy awarded by the court is to be effective and just. As pithily summed up by Professor Bray, “the equitable remedies need the managerial devices; the equitable remedies and managerial devices need the constraints.” (P. 534.)
In suggesting that we think about equitable remedies as part of a single system made up of these three logically related components, Professor Bray has not only provided a rational justification for the current system, but has helped explain why, even long after the merger between courts of law and courts of equity, the distinction between legal and equitable remedies remains alive and well. I, for one, have never thought about equitable remedies in quite this way before, and look forward to exploring this insight with my remedies students over the next semester.
Editor’s note: for another review of The System of Equitable Remedies please see Caprice Roberts, Staying Power of Equity, also published today.
Jun 16, 2016 Caprice RobertsRemedies
Let equity lure you with its sirens. Equity, first developed by the Court of Chancery, is vital to the law of remedies. It affects a range of rights, remedies, and defenses from public to private disputes. It cannot be forgotten, ignored, or fully merged. The trend, however, is to streamline equity. For example, Douglas Laycock has argued we should move beyond the law-equity divide, and Doug Rendleman has advocated fusion and functionalism for reasons that I separately have acknowledged: equity generates friction and confusion, especially regarding restitution and unjust enrichment. Sam Bray’s The System of Equitable Remedies refutes this movement. Bray instead argues that equity remains distinct from law and comprises its own system that is pervasive, rational, and useful.
I agree: equity is alive and well in America. It is not simply federal and state constitutional rights to jury trials keeping the divide relevant. Federal and state courts keep equity in play in statutory and common-law cases—from ERISA to contracts, environmental law to trade secrets, and beyond. Equity soldiers on, despite law schools’ dropping the Equity course and despite the merger of law and equity in almost all courts and the Rules of Civil Procedure. Complete merger remains elusive. Where law fails or falls short, the pull of equity is greatest. Equitable remedies are key where money substitutes provide inadequate protection. Bray bluntly states the need: “There must be some way for courts to compel action or non-action.” Overall, Bray’s work requires readers to stop and think before dismantling the distinct system of equity.
Equity raises fear in the minds of many. At worst, equity connotes unbridled, whimsical, illogical discretion that lingers too long with vast consequences to parties and nonparties. At its best, equity fosters fairness; the risk, however, is palm-tree justice. Equity also requires judicial oversight, which may be costly and challenging. Further, complete merger might streamline complex, arcane, and unnecessary barriers to equitable devices. But equitable discretion is vital to rights and remedies. Principled discretion is indispensable to the continued survival and success of equity. As to the fear of unbridled discretion, Rendleman articulates a path for judicial restraint in applying equity: “[a] judge’s discretionary decisionmaking ought to yield to her attention to rules, precedents, and standards keeping her pragmatic eye on consequences.”
Despite equity’s pitfalls, Bray persuasively shows that equity is an interlocking system and, more importantly, a rational, useful one. He maintains that the “very act” of classifying remedies as legal or equitable “helps maintain the system of equitable remedies.” Weaknesses, however, range from functional to substantive: equity maintains a divide that increasingly eludes modern understanding and potentially blocks relevant equitable doctrines and remedies from actions at law and vice versa. Henry Smith argues for equity to play a limited role guarding the formal rule of law against opportunism. Bray maintains that law-equity divide has “presumptive rationality” though rebuttable, as the utility of equitable concepts crossing the divide “is always open to argument.” He rejects Laycock’s characterization of the divide as “a dysfunctional proxy for a series of functional choices”; instead he sees a “good proxy.” Bray emphasizes equity’s essential function: “how judicial institutions help put a wronged plaintiff back in his rightful position.”
It is this fundamental thrust that (i) answers why full merger of equitable remedies is unsolvable given constitutional jury trial rights; (ii) provides a presumptive justification for a controversial line of Supreme Court cases that reinforce the distinction solely by appeal to tradition—what Bray provocatively explores elsewhere; and (iii) offers a fresh angle on the inadequacy-of-law prerequisite for equitable remedies, which despite Laycock’s declaration of its death, Bray sees as “well established in judicial practice,” reinforcing a “habit of classification” that aids the preservation of the system of equitable remedies.
Equity lives on in multiple dimensions: in the Supreme Court’s original jurisdiction and certiorari docket, from fiduciary duties to intellectual property, and throughout state and lower federal courts. Bray’s work focuses on courts’ continued use and categorization of equitable remedies, including injunctions, specific performance, quiet title, constructive trusts, accounting for profits, and more. As Bray reminds readers, the interconnectedness of equitable doctrines causes equitable remedies to work more effectively. The system provides limits through “equitable managerial devices,” such as contempt tools and devices to handle unexpected complexities, as well as “equitable constraints” that “guide the responsible exercise of judicial power.” Still, as Bray foresees, skeptics wonder: if these equitable tools and restraints work so well, why not extend them to legal remedies? Isn’t this especially apt now, because in a merged system, the judge will have knowledge of equitable doctrines that might aid a jury’s application of legal remedies? Bray’s defense of the imprecise line as “good proxy” is fair enough. But requiring a better rule is less compelling because the divide may fall through natural degradation, continued fusion, and increasing confusion. True, though the common law is not designed to effectuate dramatic change, we would be wise to bolster student, lawyer, and judicial understanding of equity’s power and constraints.
Bray also forecasts a confusion critique for using the label “equity” but opts again to stick with what we’ve got. In the same vein, the Restatement (Third) of Restitution and Unjust Enrichment maintains use of the misunderstood word “restitution.” It remains unclear if continued efforts to educate and clarify such concepts as equity and restitution can carry the water we hope. Still, in my opinion, both equity and restitution (its equitable and legal components) have staying power.
Bray helpfully details how equitable remedies remain distinct from legal remedies such as damages, mandamus, habeas, replevin, and some restitutionary relief. According to Bray, nonmonetary legal remedies that mimic equitable orders are not equitable because they are narrow, not open-ended or indeterminate. As Bray shows, courts cling to the distinction and numerous consequences flow. Equitable remedies remain the most powerful weapons for halting violative behavior, ordering corrective behavior, and deterring opportunism. To do so, judges need flexibility to “achieve the plaintiff’s rightful position,” as Bray aptly notes. With flexibility comes equity’s potential for imperfect correlation between right and remedy. Though it will not satisfy tight doctrinal tracking, Bray sees bounding in the “habit and range of motion that is conducive to managing the parties.” Either way, Bray helpfully defends why equitable range exists and remains necessary. Scholars should keep a close eye on principled reasoning to justify flexible expansions so the equitable remedy is sufficiently tethered to the right even if not precisely correlative.
Equity warrants deeper study. All combined, “the remedies and the remedy-related rules” constitute a system of equity in American law. Whether Bray convinces readers to reinforce the law-equity divide, he reminds us that such a distinct system of equity remains and convincingly demonstrates that if we forget the doctrines, lessons, and tools of equity, something meaningful will be lost.
Editor’s note: for another review of The System of Equitable Remedies please see Marco Jimenez, Justifying the Law-Equity Divide, also published today.
