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University of South Carolina School of Law
Flanagan, James F.

Legal and Equitable Remedies
1)      History of Equity
a.       Equity has its origins in the 12th / 13th century Norman administration of England.
                                                   i.      The principle admin officer of the English Crown was the chancellor. Most often he was the Bishop early on.
1.      One of the principle mechanisms of Norman power was to take control of the judicial system – consisted of 3 courts. (common, equity, criminal?)
                                                 ii.      In order to bring people to courts, Chancellor would issue writs (orders directing that they come) – this was the common law system
1.      This was the way the common law system / common pleas court worked???
                                                iii.      Chancellor would get many petitions from people wanting favors. Over time, he developed a procedure for dealing with this… Equity differed from the common law courts in some ways:
1.      Equity comes from canon law à similar to Roman law
a.       Judge is more investigatory
b.      Not a jury
c.       Chancellor investigates and recommends what to do
2.      Equity was not restricted to the legal forms that the common law courts were and was not strictly limited to the types of damages
a.       Had an emphasis on doing what was appropriate and fair
b.      Had an inordinate emphasis on fairness of result
3.      Chancellor had an enourmous amount of discretion to either grant a remedy or not grant a remedy
b.      By 16th Century, two court systems really. They had common law courts and equity courts.
                                                   i.      Basic divide was that equity had a rule – Chancellor would not act if there was an adequate remedy at law.
1.      Equity DEFERS to common law courts when damages are appropriate
                                                 ii.      Motive force of equity was an ORDER to an individual to do something – thus the idea that it acted in personam.
1.      Serious ramifications if you didn’t act
2.      This gave the feeling that equity courts were MORE POWERFUL than others because they could issue this type of order forcing people to act
c.       This separation of the two systems lasted in England until about 1925 and in the US until the early 20th century.
                                                   i.      It was a fundamental decision you had to make – equity or common law
                                                 ii.      But in late 19th century, we had the merger of law and equity which the FRCP are a variation of.
d.      What did this MERGER mean?
                                                   i.      You could file a suit in one court and ask for a damage remedy and an equitable remedy so that in theory both types of remedies were available
1.      Often, these remedies are inconsistent
a.       You can’t have both, so at some point in time you have to elect your remedies
b.      There is a jury in common law cases, no jury in equity
                                                 ii.      So current procedure allows you to seek both legal and equitable remedies in the same actions, but there still are some pure courts of equity
1.      The most obvious is the Family Court
a.       Families, orphans, widows, trusts, etc are the particular province of equity b/c the church was guardians of these
2.      Probate court is also that
                                                iii.      Some courts do NOT have equitable power:
1.      Generally magistrates courts do not have equitable power, with some exception in domestic relations situations
2)      Types of Remedies Available
a.       Legal
                                                   i.      Involve dollars ($) OR title to property AND a jury
                                                 ii.      Substitutionary – These tend to be substitution remedies
1.      Substitution – Your car is injured, you get money subbing for what you had
b.      Equitable
                                                   i.      Almost always ORDERS to do something AND ARE non-jury
                                                 ii.      Specific Performance – You get this to put you in the position you would have been in, the position you bargained for
                                                iii.      Injunction – Preserves status quo
                                               iv.      Restitution – The effect is to restore
                                                 v.      Declaratory Judgment – In the past a party could not get a remedy until there was an injury, but these allow a court to take a case where there is a dispute between parties and declare what their rights are – there is no injury requirement
c.       Discussion
                                                   i.      Example: Little Old Lady and the Golf Course drain…Golf Course would have to pay a bunch of money to relocate (thus their benefit)
1.      Damages – Not appropriate
2.      Equity – We can measure your damages NOT by the harm you are causing, but instead we can measure them by what you are benefiting from putting the pipe there.
a.       So we see equitable remedies can vary
d.      Deets v. Harlow (pg. 12)
                                                   i.      Facts: Case where we have adjoining landowners in a dispute about the fact that the ∆ built her hous

What are your damages if you don’t get a radio station?
1.      The loss of the income of the radio station
2.      The loss of the ability to get your message out
                                                iii.      There is a problem with damage remedy that suggests the equitable remedy makes some sense
g.      Schiller v. Miller
                                                   i.      Facts: You’ve got a fight over who gets to keep the jewelry, the question is whether or not you can get an injunction to freeze the jewels and prohibit the sale or transfer.
1.      So you have to show legal not good enough
2.      Overcome court’s reluctance to grant equitable remedies
                                                 ii.      Depends on whether or not these things are particularly unique?
1.      COURT: They are each unique, and we don’t think we can place a value on them and thus the damage remedy is not adequate
a.       Thus, injunction is proper
2.      DISSENT: He thinks they purchased these as an investment, and that although difficult to get, they do have a value and thus we should just give damages.
h.      Problem #2 – Pg 18
                                                   i.      Can you get an injunction?
1.      Getting another sculpture would not be the same as this guy’s sculpture
2.      But if we grant an injunction, you will have to supervise and determine when the performance is satisfactory
a.       Thus there are reasons why these are often avoided
i.         Grossman v. Wegman’s Food Markets, Inc.
                                                   i.      Facts: π’s appeal from a judgment dismissing their action to make the ∆ stay in the supermarket and stay in on their lease. They want an injunction.
1.      Why do they want them to do this?
a.       Supermarket brings in a lot more customers for other stores, etc
                                                 ii.      Why does the court not grant the injunction?
1.      They don’t want to have judicial supervision over this for such a long period of time
In order for it to work, the court would have to supervise for multiple years, and they just don’t want to do that