The concept of equity is a familiar concept in legal theory, education, and practice. It conjures up ideas of fairness, equality, or maybe dread, if it reminds you of your 1L contracts course where the concept carries its own distinct set of remedies. But what many people don’t know is that equity finds its origin in one of the most famous philosophers in the Western World: Aristotle. He originally developed the concept for situations where the law, because of its overbearing generality, was not well fitted for present circumstances. Thus, it could be used to rectify the law in a way the enacting legislative body would have had they been aware of the circumstances. As equity jurisprudence progressed in England, it continuously gave the judge an opportunity to do individual justice when the law could not or had not. This led one English Jurist to proclaim: “in some cases it is necessary to leave the words of the law, and to follow what reason and justice requireth . . . that is to say, to temper and mitigate the rigor of the law.”
However, over time, equity simple became its own body of law (often with separate courts) charged with adjudicating particularized subjects and remedies.” This, characterized by Fredrick Schauer in his book Thinking Like a Lawyer, as the “de-equitization of equity”, disempowered equity of its free-standing ability to right wrongs and dole out justice when the law seemed unfair. And with the eventual merging of the equity courts in the United States with regular courts of law, the concept became a far cry from what Aristotle had envisioned. It was simply another legal concept constricted by doctrine, legal rules, and precedent.
Still, Schauer explains that “the hold of the idea of equity has by no means been lost,” as it still serves as a subtle reminder of the ability judges have to act according to their conscience. Indeed, Bryan Garner and Antonin Scalia make this point explicit in their terrific book, Making Your Case: The Art of Persuading Judges, and it is to their recommendation that I now turn.
In essence, Garner and Scalia advise that when you must rely on fairness to modify the strict application of the law, you should pinpoint some jurisprudential maxim that supports your position. These maxims, venerable propositions sounding in fairness, justice, and reason, are mostly derived from equity practice, and still serve a persuasive purpose according to the duo. They include a couple examples in the text:
- “No one can take advantage of his own wrong”;
- “Acquiescence in error takes away the right of objecting to it”; and
- “He who takes the benefit must bear the burden.”
Some states, including California, have even codified these maxims so as to provide explicit statutory support for your position, and “you can almost always find one to support a defensible position,” the authors write.
I would take the utility of these maxims a step further; that is, beyond using them to support a single principle, inference, or conclusion. I believe it would be worthwhile to ground the entire theme (or at least a theme) of your case in one of these equitable maxims.
Case themes are exceedingly crucial in the litigation context, as they serve as points of emphasis and reinforcement with respect to important parts of the case. They permit counsel to construct a compelling story of what the evidence in the case shows, and help establish why the other side is responsible for what happened and why your client is not. I think various maxims of equity scattered across the legal realm are especially apt for serving as case themes because of their simplicity and common-sense appeal; who wouldn’t want to find against a person with unclean hands who is now attempting to receive compensation?
So, go out and search the now defunct realm of equity for these maxims—synonymous with the rule of law, justice, and fairness—and use them as a starting point for a case theme, theory of the case, or just a proposition you are asserting. It will hopefully shape your thinking and reasoning in a way that furthers justice and fairness, as well as give the judge a more conscientious reason to rule in your favor.
For another post about legal writing check out my post here: Point Made