The System of Equitable Remedies

Samuel Bray (UCLA)

Abstract: Law affects behavior, in part, through judicial remedies. In common law jurisdictions such as the United Kingdom and the United States, some remedies were developed in courts of law and others were developed in courts of equity. Legal remedies are still distinguished from equitable remedies by many doctrines. This Article argues that the equitable remedies and remedy-related doctrines that presently exist in American law can be understood as a separate system, a kind of distinct legal institution. The components of the system fall into three categories: (1) the equitable remedies themselves, (2) equitable managerial devices, and (3) equitable constraints. These components interact subtly and pervasively. Together, they make the equitable remedies apt for compelling action (or inaction) by a defendant, especially when the action may be continuing or iterative and is not easily measured. The system of equitable remedies is a useful and integrated whole.

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