This Article develops a new, doctrinally informed, theoretical account of equitable remedies in terms of our interest in “what we have coming to us”—an interest beyond private law’s commitment to protecting what is already ours, viz., our property rights and our rights to another’s performance of a contract. Through distinctive equitable remedies like specific performance, injunctions, and the remedial constructive trust, equity intervenes to prevent others from obstructing or diverting what a person has coming to her. The need for equity to recognize and to protect an interest in “what we have coming to us” arises, I argue, out of the limits of private law: private law allows that ordinary people have powers to change their normative situation to bring about a planned-for state of affairs and goes so far as to obligate us to exercise those powers where we have agreed to do so. But private law, in leaving it to us actually to exercise those powers, allows for a gap between what we already have and what we have coming to us, a gap private law lacks the resources to close. For example, an agreement to sell land still requires the owner’s exercise of the independent power to convey in order to bring about that planned-for state of affairs in which the purchaser is the new owner of Blackacre. This account offers a unified explanation of equity’s response to this gap in a wide range of legal areas, from contracts (specific performance, the remedial constructive trust), unfair competition (accounting and injunctions), property (injunctive relief in a nuisance action) to court actions (interlocutory injunctions, asset protection).
Equitable Remedies: Protecting "What We Have Coming to Us",
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol96/iss3/5