After the drop-add period ends in what Sarah thought was her last semester of law school, the registrar totals Sarah's credit hours and tells her that she falls one hour short of Washington and Lee's graduation requirements. The first thing a law student learns about rules is how to ask for an exception. For the law school's rules give the associate dean and a faculty committee discretion. Sarah's first argument is that an exception would be "equitable." From the two words, "discretion" and "equitable," springs our topic.
In 1971, Professor Maurice Rosenberg lamented the drought of scholarship about judges' discretion.1 That dry spell has passed. Twenty years later, Professor Yablon made the important point that the legal system has several different types of discretion.2 Scholars have rained helpful articles about discretion in procedural,3 administrative,4 environmental,5 and patent6 decisionmaking as well as an interesting literature on the jurisprudence of discretion.7
This rich literature has, while prolonging my research on the discrete subject of equitable discretion, clarified my thought, facilitated my thinking, and strengthened my conclusions. An experienced Remedies and Civil Procedure teacher, I have learned the most from remedies and procedure scholars' contributions.
My subject stems from the U.S Supreme Court's endorsement of the trial judge's equitable discretion in eBay Inc. v. MercExchange, L.L.C.8 I begin by examining background subjects, discretion's historical pedigree, the arguments for and against it, and the procedural context of Legal and Equitable decisions. Moving to the foreground of eBay v. MercExchange, I will present a contextual analysis of the judge's equitable discretion in three areas: finding a remedy for defendant's violation of plaintiffs rights, selecting the remedy for defendant's violation of plaintiff s interest, and shaping that remedy.
II. THE UNIVERSAL ISSUES IN DISCRETION
"Discretion" describes the judge's freedom, power, or authority to decide a dispute by choosing among permissible solutions, according to what he thinks best, within, I maintain, the limits of the governing law.9
The breadth of a decisionmaker's discretion to resolve a dispute is a universal issue. For the judge, the most discretionary rule is no rule at all. Plutarch wrote of Lycurgus, lawgiver of Sparta in ancient Greece, that:
Lycurgus would never reduce his laws into writing... [for] pecuniary contracts, and such like, the forms of which have to be changed as occasion requires, he thought it the best way to prescribe no positive rule or inviolable usage in such cases, willing that the manner and form should be altered according to the circumstances of time, and determinations of men of sound judgment.10
The lawgiver's written law perforce reduces the judge's discretion. For Aristotle, "laws, properly enacted, should themselves define the issue of all cases as far as possible, and leave as little as possible to the discretion of the judges ... ."n "It is better that law should rule than any individual.... He who entrusts any man with the supreme power gives it to a wild beast, for such his appetites sometimes make him; passion influences those who are in power, even the very best of men; but law is reason without desire."12
A written rule constrains a judge's ability to exercise discretion, for "many rules speak to the courts with sufficient clarity to leave no room for choice worthy of the name... ."13 A written rule's precision affects the judge's discretion, which diminishes along the continuum from vagueness to specificity. The judge's maximum discretion is on the imprecise end of the continuum where vagueness invites flexibility.14 As we will see below, a judge has "greater freedom," more discretion, when the rule is constitutional or common law than when it is statutory.15
People in a small homogeneous culture with a high degree of shared meaning and values may not require a detailed system of rules because all of them know what behavior the system requires. …