Whose Equity? Interpreting Statutes Authorizing Equitable Remedies

Drew Garden*

The role of equity in federal law has sparked significant recent debate. Much ink has been spilled over the appropriate role of the general equity power in federal jurisprudence. Less attention has been paid to the interpretation of statutes explicitly authorizing equitable remedies. Equity, by its very nature, is a shifting field. In fact, equity came into being precisely because of this need for flexibility, and the role it has played throughout English and American history has been possible solely because of its ability to adapt. Thus, when a statute authorizes equitable remedies but does not specify which remedies, the question of what a judge may permissibly do is not always easy.

In response to this difficulty, the modern Supreme Court has applied a cautiously historical approach to statutory equitable relief, requiring historical analogues before 1789, or at least before the merger of legal and equitable procedure, to any equitable relief granted under a broad authorization of equitable remedies. There have been other approaches considered, but these first two have been dominant in the realm of statutory interpretation.

Contrary to some interpretations, the grant of the equity power to the federal courts in 1789 did not freeze equitable relief as it stood then, nor did the 1938 merger of law and equity courts. It is true that equity began as a far-reaching discretionary power. Originally, the chancellor was empowered to wade into legal disputes and dispense justice according to his own conscience. The intervening centuries, however, have borne witness to a significant formalization of the equity power. While American equity may still appear excessively flexible to cautious common-law judges, it has its own history, and that history limits it just as surely as precedent limits courts of law.

When Justice Gorsuch wrote for the Court in Whole Woman’s Health v. Jackson that it is the “historical practice” of equity that limits “[t]he equitable powers of federal courts,” he was referring to those limits imposed by equitable tradition. The problem is that the Court does not seem certain of what equity’s “historical practice” was. As the equitable maxim runs, “[e]quity looks to the intent rather than to the form.” Equitable “precedent” has never been concerned with justifying decisions based on careful consideration of whether a precise form of relief had been granted. Rather, equity has always been guided by a different consideration: whether a particular case demonstrates the need for an extraordinary form of relief developed by equitable tradition. If the Court is going to limit equity power based on equitable tradition, it must be clear on the traditional nature of equity.

In this Note, I will argue that the approaches to interpretation of statutorily authorized equitable remedies employed by the modern Court are based on misunderstandings of equity. In Part I, I will consider the history of equity and what it teaches us about the modern doctrines. In Part II, I will analyze the approaches of the modern Court and note some alternatives the Court has considered. In Part III, I will address the problem of interpreting statutes authorizing equitable remedies in the context of equity as a whole and offer some suggestions for how best to approach this issue going forward.

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*J.D. Candidate, Notre Dame Law School, 2025; B.A., University of Notre Dame, 2016.  Thanks to my colleagues on the Notre Dame Law Review for their careful edits; to Bennett Rogers, Claire Ramsey, Anneliese Ostrom, Sachit Shrivastav, Athanasius Sirilla, Chris Ostertag, and Tim Steininger for their insightful comments; to Professors Sam Bray, Paul Miller, and Kari Gallagher for their mentorship and advice; and to my father, Kevin Garden, for teaching me to love the law.