Document Type
Article
Publication Date
2023
First Page
112
Volume
17
Issue
1
Source Publication Abbreviation
New York University Journal of Law & Liberty
Abstract
“Equitable originalism” is a judicial philosophy that only injunctions allowable in English chancery courts at the time of America’s founding in the 1780s are allowable in federal courts today. Accordingly, previously unknown types of injunctions, such as structural or nationwide injunctions, are prohibited exercises of judicial power.
This article asks whether historical analysis supports the assertion that the founders intended to crystalize federal equitable powers in the 1780s. The answer is no. Analysis of Article III, federal legislation, rules of court, treatises and caselaw in the late 1700s and 1800s illustrate that the United States received equity from the colonies and England as a principle-based jurisdiction that was expected to adapt to changing circumstances. Like the U.S. reception of English common law, U.S. judges and scholars saw English chancery practices as a gap filler for a burgeoning U.S. legal system with different political, economic and environmental realities. The “equitable originalism” approach to federal injunctive power is not in keeping with the text, function, purpose or traditions associated with equity as understood by the founders. Rather than cabin in federal equity as it existed in England in the 1780s, federal legislators, scholars and courts expected courts to exercise caution when issuing injunctions and apply the centuries-old requirement that legal remedies are inadequate. The U.S. Supreme Court is ripe to weigh in on when, if ever, nationwide injunctions are allowable as the practice proliferates in politically-charged cases. Disallowing nationwide injunctions based on English practice in the 1780s could have significant consequences for federal equity jurisdiction and injunctive relief. As such, an accurate historical picture of the U.S. reception of equity and injunctive power is necessary. Nationwide injunctions have many faults, but criticizing them for not existing at the time of the founding is an insufficient reason to reject them outright.
Recommended Citation
Conley, Anna C., "A Challenge to "Equitable Originalism" - The History of Injunctions as a Principle-Based Adaptable Judicial Power" (2023). Faculty Law Review Articles. 230.
https://scholarworks.umt.edu/faculty_lawreviews/230