Aaron-Andrew P. Bruhl, William & Mary Law School, has posted Equity on Appeal:
It is generally understood that the Federal Rules of Civil Procedure merged the divergent trial procedures of the common law and of equity and that they did so by adopting the equity practices at almost every turn. This paper traces the origins of federal appellate procedure, where there is also a story of merger, indeed an interesting and more complex one. Just as we used to have separate systems of trial-level procedure for common law (typified by juries and damages) and equity (the chancellor, depositions, and injunctions), we used to have two separate systems for appellate review. At common law, a reviewing court examined the record for errors of law using the procedural vehicle of the writ of error after the final trial judgment. In the equity tradition, by contrast, an appeal was a rehearing of the law and the facts aimed at achieving justice, and the appeal did not need to await a final judgment. Unlike the story with federal trial procedure, where we can identify a date of merger (1938, with the Federal Rules) and a winning side (equity as conqueror), the federal appellate procedure of today merged fitfully over the course of two centuries and left us with a blended system that incorporates important aspects of both of the old traditions.--Dan Ernst
In addition to revealing some of the complicated roots and hybrid character of current federal appellate practice, the paper has a second goal, namely to show that an appreciation of the history can explain some current pressures in the system and can suggest some modest reforms. Some odd things are happening in the world of appellate courts (e.g., “universal” injunctions and objections thereto, the shadow docket, disregard of the deferential clear-error standard in high-profile cases). Some of these phenomena can profitably be understood as suppressed features of equity practice reasserting themselves. And the federal courts could benefit from the reemergence of some lost practices from the distinctive equity appeal. To be very clear, I do not urge that we somehow transplant the bifurcated appellate procedure of the past into our modern federal court system. Many old distinctions have been abolished for good reason. Neither should we resurrect equity practice in full. Nonetheless, there are some circumstances in which the equitable model of appeal — review of the facts, reweighing of the equities, tolerance of interlocutory appeals, an orientation toward concluding a matter with full justice — still makes sense today. That is, there are good functional reasons for non-antiquarians to appreciate aspects of the equitable model of appeal. In sum, this paper aims to bring the revival of interest in equity, now the subject of a lively scholarly literature, to the law of appeals.
