Academic journal article The Review of Litigation

The Triumph of Equity: Equitable Estoppel in Modern Litigation*

Academic journal article The Review of Litigation

The Triumph of Equity: Equitable Estoppel in Modern Litigation*

Article excerpt

"Laws covet to be ruled by Equity."1


When the law is against you, defense counsel should consider equity. Proof of equitable estoppel may prompt a dismissal by licensing a litigation strategy based on the inconsistent conduct of the party opponent.

Emanating from the philosophical ideals of Aristotle,2 equity was begotten-not made-by chancellors in ancient England.3 These chancellors were clergymen, who served as secretaries to the King with the authority to decide disputes between his subjects.4 Sitting in the English High Court of Chancery, chancellors dispensed justice by royal prerogative when relief was inadequate or inequitable in the courts of the common law.5 The inequity addressed by equitable estoppel concerned the contradictory conduct of litigants that worked to their advantage in a case or to the disadvantage of the adverse party.6

A doctrine of "estoppel" actually originated in the law courts, but it was the equitable gloss added by the chancery court that has persisted.7 In England and America, this popular defense was shared by both court systems before the merger of law and equity and continues to be applied in cases seeking legal or equitable relief in this post-merger world.8

Litigators battling for justice in today's fast-paced legal environment should replicate the resourcefulness of the historic chancellors and incorporate equitable estoppel into their litigation strategy. Estoppel may be the best potential defense in a difficult case for three reasons. First, estoppel fits a diverse array of factual circumstances, maximizing its potential application.9 Second, judges, rather than juries, usually decide issues of equitable estoppel, providing more opportunities for dismissal without the cost and uncertainty of trial. ' Third and finally, a trial court has discretion in applying equitable defenses like estoppel.11 Such freedom of decisionmaking means a more lenient appellate review and a greater likelihood of safeguarding a favorable judgment.12

Parts III through V address the foregoing three arguments in defense of the equitable defense of estoppel. Scholarly attention to the general subject of equitable defenses has been virtually non existent since the integration of law and equity,13 and critical commentary on equitable estoppel has been confined to discrete contexts.14 Therefore, the Article reviews the current and chaotic state of estoppel law relevant to each part of the tripartite analysis: the definition of the defense, the decisionmaker, and the exercise of discretion.15 It provides a fresh perspective in the area of equitable estoppel and demonstrates how legal innovation through analogical reasoning is always a work in progress.

Part II begins with a brief overview of the development of equitable estoppel. Part III then examines the elements of the defense. It explains the issue of intent and the requirement of reliance and advises how to avoid these and other potential pitfalls in the application of estoppel. Strategies are found, specifically, in analyzing recent cases that trade the stability of precedent for traditional notions of fairness to further the defense and its fundamental policies. Additionally, this part profiles precedents pronouncing the indeterminacy of equitable estoppel and outlines its universal availability.

Part IV discusses the judge as primary arbiter of equitable defenses and explores cases answering the "who decides" question as to both facts and law. It cautions against an addiction to the factlaw formula for purposes of choosing the appropriate decisionmaker to decide the values served by estoppel law and the inevitable balancing of competing values that usually involve factual predictions. It argues that decreeing the hierarchy of values in a given case of estoppel is within the competence of the court. Finally, this Part examines whether and when litigants have a constitutional right to a jury evaluation of the defense, irrespective of its equitable heritage. …

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