EQUITY: THE DISFAVORED TWIN OF LAW?

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Wednesday, July 22, 2009

By Larry Delano Coleman, Esq.

“The Framers of the U.S. Constitution recognized the providence of
equity by writing in Article III, Section 2, Clause 1, that the "judicial
Power shall extend to all Cases, in Law and Equity."
http://legaldictionary.thefreedictionary.com/Equity.

Later, in the 11th Amendment, such broad judicial power was somewhat reined in:

“The judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by
Citizens or subjects of any Foreign State.”

Viewing “law and equity” in tandem is deceptive. They are not flip
sides of the same coin, called “justice.” They are ancient, historic
antagonists, derived from different sources, serving different ends.

Put bluntly, “law” is man-made, while “equity” is divine amendment.
Law concerns statutes and case law. Equity asks what is morally
right. Law is callous justice. Equity is grace and mercy, applied.

The Old Testament explicates the distinction more fully. After
having defied and disobeyed God by causing the people of Israel
to be numbered, David, through his seer, Gad, is offered three
forms of punishment by God.

They are, “Three years’ famine; or three months to be destroyed before thy foes, while the sword of thine enemies overtaketh thee; or else three days the sword of the Lord, even the pestilence in the land, and the angel of the Lord
destroying throughout all the coasts of Israel.” David’s response to
Gad is classic: “I am in a great strait: let me fall now into the hand of
the Lord; for very great are his mercies: but let me not fall into the
hand of man.” 1 Chron.21:12-13.

Though the tendency is to equate the doctrine of “equity” with the
Chancery Courts of England, as has already been demonstrated, “equity,” as a notion, is much older than England as a nation. “Equity,” arguably, prompted King John to capitulate to the nobility, in assigning to them certain rights under the Magna Charta in 1215 at Runnymede, as a check, albeit
tentative, against the untrammeled abuse of royal prerogatives.

“Equity” has biblical roots. And pre-biblical roots.

One of its earliest usages is found in Psalms 98:8-9, “Let the floods
clap their hands: let the hills be joyful together before the Lord; for he
cometh to judge the earth: with righteousness shall he judge the
world, and the people with equity.”

At the outset of the book of Proverbs, we find “equity” also, viz.:
“The proverbs of Solomon the son of David, king of Israel; To know
wisdom and instruction; to perceive the words of understanding; To
receive the instruction of wisdom, justice, and judgment, and equity;
to give subtilty to the simple, to the young man knowledge and
discretion.” (Prov.1:1-4)

“Equity’s” roots, in fact, predate, the Bible, disappearing into the
daunting mists of Ancient Egypt’s prehistory. “Ma’at,” a teleological
value system, appears to be where law and equity originated.
http://en.wikipedia.org/wiki/Law#cite_note-86.

“Ma’at” is the Ancient Egyptian concept of truth, balance, order, law,
morality, and justice. Maat was also personified as a goddess
regulating the stars, seasons, and the actions of both mortals and the
deities, who set the order of the universe from chaos at the moment of
creation. The earliest surviving records indicating Maat is the norm
for nature and society, in this world and the next, is recorded during
the Old Kingdom in pyramid texts (c. 2780-2250 BCE).”
http://en.wikipedia.org/wiki/Ma%27at

All the great civil rights victories attained by such legends as
Charles Hamilton Houston, Thurgood Marshall, James Nabrit,
Spotswood Robinson and others involved some form of equity, as
the remedy. No civil rights victory not involving equity comes to
mind. Neither am I aware of any civil rights case in which
monetary damages were either sought as a remedy or awarded.

Jack Greenberg, Esq., in his memoir, Crusaders in the Courts,
Legal Battles of the Civil Rights Movement, (Twelve Tables
Press: NY, 2004) states in the concluding chapter, “A Summation:
Victories and Defeats, Imagining The Future”: “The foregoing areas
[‘Ghetto areas…welfare cases…housing’] are within the domain of
what is often termed economic rights. Court action has been
notably unsuccessful in addressing what in large part is an issue of
economic distribution.” (p.553) The “issue of economic
distribution,” is the area wherein Mr. Greenberg, successor to
Thurgood Marshall as Director-Counsel of the NAACP Legal
Defense and Educational Fund, concedes “defeat.”

Equity is defined as “fairness or equality.” As used herein, it is also
defined as “1 a: justice according to natural law or right; specif:
freedom from bias or favoritism…2 a: a system of law
originating in the English chancery and comprising a settled
and formal body of legal and procedural rules and doctrines
that supplement, aid, or override common and statute law and
are designed to protect rights and enforce duties fixed by
substantive law…” (Merriam-Webster’s Collegiate Dictionary,
11th ed. 2003) p.423.

"In its broadest sense, equity is fairness. As a legal system, it is a body
of law that addresses concerns that fall outside the jurisdiction of
Common Law. Equity is also used to describe the money value of
property in excess of claims, liens, or mortgages on the property.
Equity in U.S. law can be traced to England, where it began as a
response to the rigid procedures of England's law courts. Through
the thirteenth and fourteenth centuries, the judges in England's
courts developed the common law, a system of accepting and
deciding cases based on principles of law shaped and developed in
preceding cases. Pleading became quite intricate, and only certain
causes of action qualified for legal redress. Aggrieved citizens found
that otherwise valid complaints were being dismissed for failure to
comply with pleading technicalities. If a complaint was not dismissed,
relief was often denied based on little more than the lack of a
controlling statute or precedent.

Frustrated plaintiffs turned to the king, who referred these
extraordinary requests for relief to a royal court called the Chancery.
The Chancery was headed by a chancellor who possessed the power
to settle disputes and order relief according to his conscience. The
decisions of a chancellor were made without regard for the common
law, and they became the basis for the law of equity.
Equity and the common law represented opposing values in the
English legal system. The common law was the creation of a judiciary
independent from the Crown. Common-law courts believed in the
strict interpretation of statutes and precedential cases.”
http://legaldictionary.thefreedictionary.com/Equity

Those “opposing values” between “common law” and “equity,” have
found a fertile climate in American jurisprudence. On July 21,
2009, in an appeal of an unemployment compensation case, in
Kansas City, Missouri, the Court of Appeals, decried the fact that
under the law, the state agency in charge lacked authority “to
consider issues of fairness.” Thus, the court affirmed a decision
authorizing the recoupment of $7280 in unemployment benefits to
the state by the unemployed worker, who did nothing wrong, but be
overpaid.
http://www.courts.mo.gov/page.asp?id=12087&search=Andrea
Harris v. Division Employment Security&dist=Opinions
Western&n=0

In effect, the Missouri Court of Appeals recoiled from the harshness
of its own opinion, and hinted to the legislature that by changing
the word “shall” to “may” it would enable equity in deserving
cases, such as that then under consideration.