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Article Title

Equity and the Sovereign

Abstract

Equity traces its genesis to kingly power. But the new American constitutional order shattered the crown and left equity unanchored. Who or what, if anything, inherited the role of the sovereign in federal equity? Is the sovereign the executive branch—or is it Congress? Is it “the United States” or “the people of the United States”? However we conceive of the sovereign, is the sovereign entitled to special deference in a federal court of equity—or to the reverse?

Federal courts have not arrived at consistent answers to these puzzles. They have vacillated on who the sovereign is. And they have vacillated on whether the sovereign is entitled to equal, better, or worse treatment from equity than other litigants receive. If equity is, like spacetime, our law’s background field—a “gloss written round our code,” in Maitland’s description—then sovereign power is a star so massive that it warps that field, shrinking parts of it and expanding others.

This Essay, a contribution to a Symposium on the federal equity power hosted by the Notre Dame Law Review, canvasses the varying approaches that federal courts in equity have taken towards the sovereign. It then explores some implications of equity’s treatment of the sovereign for equitable doctrine and for our understanding of Article III’s reference to “Cases, in . . . Equity.” How to conceive of the sovereign in equity in a government without a sovereign was a problem that challenged the members of the first Congress and the first sitting Justices; it is a problem that continues to lurk in the law today.

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