Law Commons^™

Preliminary Injunctions In Public Law: The Merits, Kevin J. Lynch

Sturm College of Law: Faculty Scholarship

The law of preliminary injunctions has been evolving, in many instances away from its roots in equity and towards a more rigid and formalistic approach that raises the bar for when a preliminary injunction may be granted. This change has its roots in hostility at the Supreme Court to certain types of rights, such as abortion, voting rights, public health, and environmental protection, to name a few. In the aftermath of the Supreme Court’s 2009 decision in Winter v. Natural Resources Defense Council, a few circuits have adopted a strict, literal reading of some dicta from that case in order …

"A Sword In The Bed": Bringing An End To The Fusion Of Law And Equity, Brooks M. Chupp

Notre Dame Law Review

Those who called for the fusion of law and equity have, throughout the years, argued that the existence of a parallel court system for equity would be inefficient and confusing for parties. While there is limited merit to this viewpoint, the United States has been willing to create courts of limited jurisdiction to hear cases of a highly specialized or technical nature in other areas of the law (for example, tax and bankruptcy). This Note argues that the specialized-courts approach is viable as it relates to equity and that it is, in fact, preferable to the current system. This Note …

Our Equity: Federalism And Chancery, Jeffrey Steven Gordon

University of Miami Law Review

Federal courts sitting in diversity cannot agree on whether state or federal law governs the award of a preliminary injunction. The conditions for the exercise of a federal diversity court’s extraordinary remedial power are anybody’s guess. The immediate cause of the confusion is Justice Frankfurter’s cryptic opinion in Guaranty Trust Co. v. York, which aggressively enforced Erie and, at the same time, preserved the so-called “equitable remedial rights” doctrine. There are, however, much broader and deeper causes that explain why the equitable remedial rights doctrine is almost incomprehensible today.

This Article argues that the early history of equity in …

2017 Mlk Keynote Emory Douglas Educational Foldout, Center For Social Equity & Inclusion, Emory Douglas

Martin Luther King, Jr. Series

Educational foldout for the 2017 MLK Keynote Address: Emory Douglas. An artist, educator and human rights activist, Emory Douglas served as the Minister of Culture for the Black Panther Party from 1967-80. Best known for his political drawings and cartoons in the Black Panther Newspaper, he articulated the injustices experienced by African Americans living in the inner city, the growing militancy and organization among urban black youth in the face of police violence and the need for community-based social programs. 2017 MLK Keynote, Emory Douglas discusses the process, meaning and impact of his artwork then and now.

2017 Mlk Keynote Emory Douglas Program, Center For Social Equity & Inclusion, Emory Douglas

Martin Luther King, Jr. Series

Program for the 2017 MLK Keynote Address: Emory Douglas. An artist, educator and human rights activist, Emory Douglas served as the Minister of Culture for the Black Panther Party from 1967-80. Best known for his political drawings and cartoons in the Black Panther Newspaper, he articulated the injustices experienced by African Americans living in the inner city, the growing militancy and organization among urban black youth in the face of police violence and the need for community-based social programs. 2017 MLK Keynote, Emory Douglas discusses the process, meaning and impact of his artwork then and now.

The "Test"--Or Lack Thereof--For Issuance Of Virginia Temporary Injunctions: The Current Uncertainty And A Recommended Approach Based On Federal Preliminary Injunction Law, Hon. David W. Lannetti

University of Richmond Law Review

No abstract provided.

Remedies: A Guide For The Perplexed, Doug Rendleman

Doug Rendleman

Remedies is one of a law student’s most practical courses. Remedies students and their professors learn to work with their eyes on the question at the end of litigation: what can the court do for the successful plaintiff? Remedies develops students’ professional identities and broadens their professional horizons by reorganizing their analysis of procedure, torts, contracts, and property around choosing and measuring relief - compensatory damages, punitive damages, an injunction, specific performance, disgorgement, and restitution. This article discusses the law-school course in Remedies - the content of the Remedies course, the Remedies classroom experience, and Remedies outside the classroom through …

Reflections Of A Recovering Aggregationist, Linda S. Mullenix

Nevada Law Journal

No abstract provided.

Mixing Law And Equity Causes Of Action Does Not Preclude A Jury Trial, Philip M. Halpern

Pace Law Review

This article addresses the issue of the preclusion of jury trials in actions which contemplate both legal and equitable relief. Part II of this article addresses the constitutional and statutory history of New York Civil Practice Law and Rules (“CPLR”) Section 4101 concerning issues triable by a jury and the dichotomy between those actions triable by a jury and equitable actions triable by the court alone. Part III of this article addresses the interplay between CPLR Sections 4101 and 4102, concerning demand and waiver of trial by jury, and the analysis developed by the courts to determine whether a jury …

The Fourth Era Of American Civil Procedure, Thomas O. Main, Stephen N. Subrin

Scholarly Works

Every contemporary American lawyer who has engaged in litigation is familiar with the now fifty-four-volume treatise, Federal Practice and Procedure. Both of that treatise’s named authors, Charles Alan Wright and Arthur Miller, have mourned the death of a Federal Rules regime that they spent much of their professional lives explaining and often celebrating. Wright shared a sense of gloom about federal procedure that he compared to the setting before World War I. Miller has also published a series of articles that chronicled his grief.

We agree that something has fundamentally changed. In fact, we believe that we are in …

Remedies: A Guide For The Perplexed, Doug Rendleman

Scholarly Articles

Remedies is one of a law student’s most practical courses. Remedies students and their professors learn to work with their eyes on the question at the end of litigation: what can the court do for the successful plaintiff? Remedies develops students’ professional identities and broadens their professional horizons by reorganizing their analysis of procedure, torts, contracts, and property around choosing and measuring relief - compensatory damages, punitive damages, an injunction, specific performance, disgorgement, and restitution. This article discusses the law-school course in Remedies - the content of the Remedies course, the Remedies classroom experience, and Remedies outside the classroom through …

How Equity Conquered Common Law: The Federal Rules Of Civil Procedure In Historical Perspective, Stephen Subrin

Stephen N. Subrin

Part I of this Article first looks at the major components of common law and equity procedure, and then examines the domination of an equity mentality in the Federal Rules. Part II explores the American procedural experience before the twentieth century, and demonstrates how David Dudley Field and his 1848 New York Code were tied to a common law procedural outlook. Part III concentrates on Roscoe Pound (who initiated the twentieth century procedural reform effort), Thomas Shelton (who led the American Bar Association Enabling Act Movement), and Charles Clark (the major draftsman of the Federal Rules). Through understanding these men …

Limits Of Enforcement Of Intellectual Property Rights -- Injunctive Relief, Equity, And Misuse Of Rights, Marketa Trimble

Boyd Briefs / Road Scholars

Professor Marketa Trimble presented these materials at the 33rd Meeting of the German Society for Comparative Law (Gesellschaft für Rechtsvergleichung) in Trier, Germany, on September 16, 2011.

The Merger Of Common-Law And Equity Pleading In Virginia, William Hamilton Bryson

Law Faculty Publications

This article describes the separation of common law and equity in Virginia leading up to the 2006 merger of common law and equity pleading and the problems that remain to be solved by the courts.

Supreme Court Jurisdiction

Touro Law Review

No abstract provided.

Property Rights Of Unmarried Cohabitants In New York: Proposal For Legislative Action Towards A More Equitable Future, Helene Kulczycki

Touro Law Review

No abstract provided.

New York's Real Property Tax Law: The More Changes That Are Made, The More Things Stay The Same, Ira M. Sockowitz

Touro Law Review

No abstract provided.

Litigating The Zero-Sum Game: The Effect Of Institutional Reform Litigation On Absent Parties, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

This article considers the impact that the use and misuse of equitable interest balancing has had on institutional reform litigation. It begins by considering the types of cases in which interest balancing was originally used in equity, and then surveys the use of interest balancing in school desegregation and employment discrimination cases. The article argues that the Supreme Court's interest balancing is flawed in systemic ways that result in overvaluing non-party interests.

Federal Rules Of Civil Procedure-Rule 19 And Indispensable Parties, Michigan Law Review

Michigan Law Review

The reformulation of compulsory joinder rules, urged by commentators for a decade, has been realized with the 1966 amendment to rule 19 of the Federal Rules of Civil Procedure. Prior to the amendment, courts consistently held that the absence from the lawsuit of persons who were "indispensable" deprived the court of power to adjudicate the action. The amendment to rule 19 is an effort to establish a methodology which requires a practical consideration of the factual situation at hand when determining the propriety of permitting a case to continue even though certain parties are not joined. A brief look at …

Punitive Damages In Equity - Superior Construction Co. V. Elmo, Gerald J. Robinson

Maryland Law Review

No abstract provided.

Pleading--Equity--Insufficiency Of Bill A Jurisdictional Defect, W. O. S.

West Virginia Law Review

No abstract provided.

The Replication And The Special Reply In Writing In Equity, R. E. M.

West Virginia Law Review

No abstract provided.

Equity--Retention Of Jurisdiction To Award Damages, W. A. B.

West Virginia Law Review

No abstract provided.

The Joinder Rules And Equity Jurisdiction In The Avoidance Of A Multiplicity Of Suits - Bachman V. Lembach

Maryland Law Review

No abstract provided.

Power Of Equity To Enjoin Trespasses To Real Property - Requisites For Tile Granting Of Such Relief Baker V. Howard Hunt, Et Al.

Maryland Law Review

No abstract provided.

Estoppel And Statutes Of Limitation, John P. Dawson

Michigan Law Review

Among all the spheres of its activity estoppel probably performs no more useful service than in the alleviation of hardship caused by statutes of limitation. Here as in other places the elements of estoppel and its relations to more basic legal concepts are exceedingly hard to define. At some points its effects on limitation acts could be described in terms of express contract; at other points it merges into "fraud"; in general it provides the medium for official expressions of disapproval where civil litigation exceeds the permissible limits of private warfare.

Appeal And Error--Decree "Adjudicating The Principles Of The Cause"--Decree Dismissing A Suit In Equity With Leave To Transfer To Law, Paul D. Farr

West Virginia Law Review

No abstract provided.

Review Of A Review, Charles E. Clark

Michigan Law Review

In an interesting review of WALSH ON EQUITY, in 29 MICH. L. REV. I I 22 (June 1931 ), Professor Clarence D. Laylin appears to ascribe to me parenthood for some pleading concepts set forth in that excellent treatise ( of which I heartily approve; compare my review in 8 NEW YORK UNIVERSITY LAW QUARTERLY REVIEW 521, March, 1931). Although these ideas have been supported by able writers and courts for some time, I should not object to the honor but for the fact that Professor Laylin also seems to assume premises which in my opinion are most inimical to …

Adversary Parties - Same Person As Both Plaintiff And Defendant, Edson R. Sunderland

Articles

Under the regulations promulgated by the Railroad Administration in 1918, all actions for injury to persons or property growing out of the possession or control of any railroad or system of transportation by the Director General of Railroads were required to be brought against the Director General. ORDER No. 50. Some courts refused to follow this order on the ground that it was contrary to the statute creating federal control. Lavalle v. Northern Pacific Railway Company, (1919), 143 Minn. 74; Franke v. Chicago & N. W. Ry. Co., (1919), 170 Wis. 71. But Order No. 50 has been generally observed, …

The Michigan Judicature Act Of 1915, Edson R. Sunderland

Articles

IN 1848 a wave of reform in judicial procedure began to sweep over the United States. In that year the legislature of New York enacted the Code of Civil Procedure, a statute of far-reaching importance, for it became the source of and the model for similar legislation in almost two-thirds of the States in the Union.