Equitable Defenses in the Age of Statutes *

By Anenson, T. Leigh | The Review of Litigation, Winter 2018 | Go to article overview

Equitable Defenses in the Age of Statutes *


Anenson, T. Leigh, The Review of Litigation


INTRODUCTION......................................661

I. THE METHOD OF EQUITY....................................665

A. Tradition....................................668

B. Public Policy....................................672

C. Discretion....................................678

D. The Medieval Modernist....................................684

II. THE DEVELOPING SUPERVISORY ROLE....................................685

A. Expansive Phrases to Elements....................................687

B. Facts to Law....................................689

C. Escape Valves and Analogies....................................691

III. THE CHALLENGES OF CONTINUITY AND CHANGE...................................692

CONCLUSION....................................707

The evolution of law is to a large extent the history of its absorption of equity. - Ralph Newman1

INTRODUCTION

Equitable defenses are elementary conceptions of equity jurisprudence.2 Yet seldom are they the focus of study in the modern law school curriculum.3 Attorneys who began their legal education prior to the 1970s may recall that equitable defenses like unclean hands, estoppel, and laches are typically used to prevent opportunism.4 They may further remember that these maxims rest on sound moral principles that direct litigants to follow the golden rule (estoppel) or that prohibit them from taking advantage of their own wrong (unclean hands).5 They may even recollect that the doctrines usually operate ex post, rather than ex ante, to allow judges discretion and flexibility in adjusting case outcomes.6

Equitable defenses are often recognized within the realm of remedies,7 but they originated in the unwritten rules of private law.8 Since the beginning of the twentieth century, the Supreme Court has been assimilating them into public legislation without the express approval of Congress. The Court has yet to articulate a theory of statutory discretion to explain the reconciliation of equitable defenses within statutory schemes providing for private rights to public wrongs.

Without such guidance, the lower courts have been inconsistent in how they apply equitable defenses in statutory actions.9 In other disputes, equitable defenses as an appropriate basis for argument have not been squarely presented to the courts.10 Judicial opinions, as a result, neglect to provide a clear explanation of the equitable doctrines at issue because they have not properly characterized or evaluated the problem.11 Accordingly, the treatment of these maxims is up for fuller explication in federal law.

The Article proceeds in three Parts. Part I explores an emerging equitable method in the exercise of statutory discretion. It explains the importance of history in adjudicating equitable defenses. It also shows that equity's established emphasis on the public interest and judicial discretion intersect in refining the application of these doctrines. In particular, this Part documents how the Supreme Court has been more restrained in the observance of such defenses over time. The Court is additionally reuniting a general judge-made law supplied by state and federal sources. Despite the many references to the historical tradition of equity and the appearance of antiquarianism, the Court has been a medieval modernist in its approach to equitable defenses.

Part II tracks the allocation of discretion within the federal court system. It illustrates the Court's developing supervisory role in crafting guidelines for the uniform application of equitable defenses pursuant to statutory policies. Part III ide_72.tifies issues of continuity and change to better develop these statutory defenses in the future.

The Article concludes by emphasizing that often forgotten equitable defenses play an important role in statutory law. Examining how the Supreme Court applies and modifies equitable defenses in legislation should enhance understanding of these obscure and often impenetrable doctrines in a way that appreciates the law as a coherent whole. …

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