The Bitter with the Sweet: Tradition, History, and Limitations on Federal Judicial Power--A Case Study

Abstract

The distinctive traditions of equity now pervade the legal system.The war between law and equity is over.Equity won.We should stop thinking of equity as separate and marginal, as consisting of extraordinary remedies, supplemental doctrines, and occasional exceptions, as special doctrines reserved for special occasions.Except where references to equity have been codified, as in the constitutional guarantees of jury trial, we should consider it wholly irrelevant whether a remedy, procedure, or doctrine originated at law or in equity.'A critical use of history may be an excellent guide to present problems, but a critical use takes account of changes in conditions as well as similarities.

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