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10/30/2021

Samuel Bray & Paul Miller: Getting Into Equity
Michael Ramsey

Samuel L. Bray (Notre Dame Law School) and Paul B. Miller (Notre Dame Law School) have posted Getting Into Equity (Notre Dame Law Review, forthcoming) (41 pages) on SSRN.  Here is the abstract:

For two centuries, common lawyers have frequently talked about a “cause of action.” But “cause of action” is not an organizing principle for equity. This Article shows how a plaintiff gets into equity, and it shows equity is shaped by the interplay of its remedial, procedural, and substantive law. Equity is adjectival, related to law rather than the other way around. Remedies, not rights, are what give it power. And for getting into equity, it is the grievance that is central. To insist on an equitable cause of action is to work a fundamental change in how a plaintiff gets into equity.

At Volokh Conspiracy, Professor Bray notes that the paper has implications for United States v. Texas, which it discusses briefly.