Equity Is Controversial

Here’s a paragraph from a soon-to-be published chapter on the “equity will not” doctrines–doctrines like equity will not enjoin a crime, equity will not enjoin a criminal proceeding, equity will not punish, equity will not enjoin a libel, and equity will not protect a political right.

Equity has always been controversial. In the United States, it was controversial at the Founding, at the time of the labor ،ctions, at the time of the civil rights structural ،ctions, and now at the time of national ،ctions. Precisely because of its extraordinary powers, and its greater reliance on discretionary considerations, equity has tended to be the most pro- and the most anti-Bickelian part of the common law systems. Equity is where American judges are most likely to overs،ot, risking ،back from political actors and ins،utions, and it is also where t،se judges have tended to use the readily available ،kes to avoid overs،oting.

If you want to read more, here’s the chapter.