Leeming on Fusion in NSW

Mark Leeming, Judge of Appeal, Supreme Court of New South Wales and Challis Lecturer in Equity at the University of Sydney Law School, has posted Fusion - Fission - Fusion: Pre-Judicature Equity Jurisdiction in New South Wales 1824-1972, which appears in the forthcoming Equity and Law: Fusion and Fission (Cambridge University Press, 2019), 118-143:

The very idea of a "fusion fallacy" and the central importance of the effect of the Judicature legislation upon common law and equity is associated with New South Wales. Yet the Supreme Court of New South Wales was constituted in 1824 as a single court with broad jurisdiction at common law and in equity. One hundred and fifty years later, legislation was required to fuse its separate common law and equity "sides". How did that fission come about? This chapter, largely based on unpublished primary records, seeks to explain how that occurred.

--Dan Ernst

Advance Articles from AJLH

Have you signed up for Advance Alerts for the American Journal of Legal History?  Articles appearing on-line since November 8 are:

Law Evolves: The Uses of Primitive Law in Anglo-American Concepts of Modern Law, 1861-1961, by Coel Kirkby

Farewell Downton Abbey, Adieu Primogeniture and Entail: Britain’s Brief Encounter with Forced Heirship, by Lloyd Bonfield

Italian judges and judicial practice in Libya: a legal experiment in multinormativity, by Alessia Maria Di Stefano
The Jury Speaks: Jury Riders in the Nineteenth and Twentieth Centuries, by Mark Coen and Niamh Howlin

On Finding a Dissertation Topic … or at Least, My Experience Finding a Topic

All graduate students do some hand-wringing and soul-searching when it comes time to nail down a dissertation topic. (And, if not, they should.) It’s a project you live with for quite a while. So it had better be something that you find deeply engrossing and that is complex enough that you’ll keep discovering new findings. For me, I knew I wanted to work in the area of government-business relations, or political economy. I had written my Master’s thesis with Chuck McCurdy in legal history and I loved the historiography surrounding the “liberty of contract” era and the constitutional revolution of 1937, but I wasn’t sure how to systematically identify a workable research topic within my broader interests. This post recounts some advice I received on finding a research question and how that advice helped guide me toward a dissertation topic.

At the time, I wasn’t exactly looking for a dissertation topic per se. I was a second-year graduate student in search of a research question for a legal history seminar. My master’s thesis had explored the rise of the liberty of contract doctrine and the decline of equity jurisprudence in 1880s Pennsylvania. It focused on the legislation and litigation surrounding Godcharles v. Wigeman (PA, 1886). What I had most enjoyed about that project was studying the intersection – or, more appropriately, the collision – of doctrinal changes in contract interpretation and enforcement, on the one hand, and social protest and labor organization, on the other. I wanted to somehow replicate that broader inquiry, balancing the internalist and externalists pressures on the legal change. (Of course, it was that historiography that brought me to graduate school at the University of Virginia.)

First, I went down some relatively unproductive rabbit holes. At one point, I thought I’d like to write about the decline of equity jurisprudence, probably after reading Roscoe Pound’s 1905 essay, "The Decadence of Equity." I went to the library and checked out Justice Joseph Story’s tome on equity jurisprudence and began studying his categories and historical analysis. This was not fruitful. In fact, it was discouraging. For me, I needed more historiographical grounding; I needed to start with a question that would limit the scope of the inquiry. I wasn’t in a position to simply let the documents tell their story. In other words, my propensity to go down the rabbit hole needed some fencing in.

Then, I sought advice and got a great suggestion from Brian Balogh: Go back to one of your favorite books from the past year or so. Reread it. Pay attention to what you found interesting then and what you still find interesting now. Reread your marginalia. (Luckily, my books have no shortage of scribbles, question marks, and asterisks.) You’ll find a research question there. Then read what that author cited, discover a new literature, find your own primary source base, and start an investigation to tell your own story.

Well, that was simple enough! Following Balogh’s advice, I went back to Meg Jacobs’s Pocketbook Politics, one of my favorite books from the previous year. Jacobs’s book recounts the rise of mass consumption-oriented political activism. This story of state-building from the bottom up explains how consumer organizations shaped new ideas of stability and security, such as the living wage, which penetrated American civic identity and shaped modern liberalism.

As I read the book I wondered what happened to the so-called fair trade movement that Jacobs covers early in her book. Those independent proprietors were caught up in the same winds of social and economic change. They blamed the modern corporation for rising inequality and, at times, they argued that large scale producers leveraged their monopoly power to force prices and wages to artificially low levels. Louis Brandeis, the famed people’s lawyer, took up their cause and helped create the American Fair Trade League. He too feared economic concentration because it might stifle innovation and empower a small coterie of businesspeople to exercise undue influence of political processes. In short, these guys believed in market capitalism – property rights, contract enforcement, etc. – but they wanted to see the rules governing American capitalism change such that independent proprietors and trade associations might use sales contracts and industry rules, respectively, to manage the distribution chain, ridding it of unfair trade practices, such as sales below cost, predatory pricing, or secret rebates. Yet, what looked like cartel-like industry self-regulation depended on state enforcement and ultimately, state oversight. What was their contribution to modern liberalism?

So, I wondered, should this movement be dismissed as pie in the sky idealism, condemned as dying industries’ desperate rent-seeking, or approached as something more benign, maybe even some viable alternative model of American capitalism?  The historical literature was all over the place on that question. In fact, the Court seemed to be, too. Experimentation in antitrust law and policy during the first half of the twentieth century reflects the flexibility of vision that American capitalism once had. I was hooked, I needed to know more.

**

Sage advice from around the web includes practical insights and personal reflections that I would be remiss to neglect here. Apart from choosing a topic that you find deeply interesting or puzzling, Cynthia Verba, Director of Fellowships at Harvard’s GSAS, urges young academics to make sure that the dissertation is a project that you can (and will) complete in a reasonable amount of time with reasonable costs. She advises: “In this regard, it is most helpful to get advice from experienced scholars on how to limit the scope of a project without limiting the significance of the questions addressed.” (Read the full interview here.) Professor Jane Caplan published a lovely and insightful essay on selecting a dissertation topic in the AHA Perspectives. Among the many brilliant insights in her essay, she emphasizes that “graduate research projects are contingent on financial support,” which elevates the craft of writing a research proposal to one of the most important activities of young scholars. Ultimately, she concludes, as I think many historians would, “the field chose me rather than the other way round.” 

Waddilove on the Equity of Redemption

D.P. Waddilove, St. Catharine’s College, Cambridge, has posted Why the Equity of Redemption? Which appears in Land and Credit: Mortgages in the Medieval and Early Modern European Countryside, ed. Chris Briggs & Jaco Zuiderduijn (Palgrave Macmillan, 2018):

The "equity of redemption" is an equitable doctrine undergirding the law of secured lending in the common-law world. It holds that despite any legal forms to the contrary, a borrower remains the true owner of pledged/mortgaged property, with a right to redeem such property upon payment of principal, interests, and costs at any time until a court of equity forecloses a borrower’s interest. This doctrine originated in the English Court of Chancery in the early-modern period, and coincided with a significant expansion in the use of mortgages.

This chapter explores why the equity of redemption arose. It does so by situating the doctrine in the social context of its origin in early modern England. It shows that several traditional explanations for the doctrine, such as the Chancery offering programmatic support for the landed classes, or seeking to capture jurisdiction and increased business and fees from the common-law courts, or intentionally providing a counterweight to the weak bargaining power of mortgagors, are likely misunderstandings. Instead, primary sources suggest that the doctrine is best understood as judicial enforcement of social norms related to mortgage debts in preference to legal technicalities; the equity of redemption was enforcement of “real-world” expectations over legal rights. Why the equity of redemption arose is therefore because it was the most obviously “fair” or intuitively “reasonable” way to address mortgage forfeiture at the time. The equity of redemption was the layman’s response to mortgage forfeiture rather than the lawyer’s.

Gelter and Helleringer on Fiduciary Principles in European Civil Law

Martin Gelter, Fordham University School of Law, and Geneviève Helleringer, ESSEC Business School Paris, have posted Fiduciary Principles in European Civil Law Systems, which is forthcoming in the Oxford Handbook of Fiduciary Law, edited by Evan J. Criddle, Paul B. Miller & Robert H. Sitkoff:

This chapter surveys fiduciary principles in Western European civil law jurisdictions. Focusing on France and Germany, we suggest that functional equivalents to fiduciary duties have developed on the Continent, although they do not always carry exactly the same connotations as their common law counterparts. We suggest that the common law developed fiduciary duties as a distinct category largely for two reasons. First, the common law distinguished between law and equity, with fiduciary law developing within equity. By contrast, contracts law required consideration, which meant that fiduciary principles for gratuitous actions necessarily arose outside of contract law. Civil law generally did not develop this particular categorization. For example, the paradigmatic fiduciary relationship, the mandate (agency), is by default a gratuitous contract. Consequently, the lines between fiduciary and contract law remained blurred. Second, common law bargaining for contracts emphasizes part autonomy more strongly, while the civil law of contracts incorporated a stronger duty of good faith, thus making it more hospitable to an implied and inchoate loyalty obligation. The duty of loyalty in civil law jurisdictions is not categorically different from such duties, but exists on a continuum with them. Consequently, civil law duties of loyalty in those relationships that would be considered fiduciary under the common law can be seen as an extension of weaker loyalty obligations elsewhere. We survey the civil law of agency, equivalents of trust, as well as corporate and financial law. Germany and countries influenced by German law began to identify duties of loyalty in corporate and trust relationships in the middle of the 20th Century and identified them as a larger civil law principle permeating different areas of law. France and related jurisdictions have been more reluctant to adopt such duties, and have been more likely to rely on specific statutory prohibitions to reach similar results.

Turner on Fusion and the Penalty Doctrine

P. G. Turner, University of Cambridge, St. Catharine's College, has posted Lex Sequitur Equitatem: Fusion and the Penalty Doctrine:

Since an early article of Professor Brian Simpson’s, the opinion of historians and lawyers has been that the penalty doctrine which disallows the enforcement of penal stipulations in voluntary transactions derives from a fusion of law and equity. Specifically, the doctrine derives from ‘fusion by convergence’: the independent development by separate courts of law and courts of equity of similar rules concerning relief from penalties.

Under Simpson's account, the penalty doctrine has become a model of the fusion of law and equity dating to the life of equity's ‘father’, Lord Nottingham. On that account, after transacting parties began using them in the fourteenth century, English law condoned the use of penalties in voluntary transactions for upwards of one century. Slowly the Court of Chancery found situations in which it would be inequitable to condone the penalty: at first because of special circumstances, later simply because the penalty was a penalty. The common law soon followed, inverting the maxim aequitas sequitur legem. By the last quarter of the seventeenth century, the common law courts routinely relieved against penalties, and by the turn of the nineteenth century had taken over the bulk of such litigation. The penalty doctrine became a common law doctrine solely or nearly so.

Half a century after its publication, Simpson’s thesis requires examination. This paper suggests that Simpson’s account and the current understanding that flows therefrom are false. On the basis of a fuller examination of printed and unprinted reports and manuscript sources of the Court of King’s Bench and Court of Chancery than previously made, this paper redraws the account of the development of the penalty doctrine. The evidence shows that: penalties were routinely enforced in common law courts until the end of the eighteenth century; all “common law” relief in the royal courts depended on statutes under which the judges applied equitable principles borrowed from the Court of Chancery; reliance on statutory power to grant relief at common law continued after 1875 in “Judicature Act courts”; but the repeal of those statutes means that the only source of principle for relief from penalties in England today are principles of equity.

Simpson’s suggestion that the penalty doctrine is a product of “fusion” is mistaken: in the modern period, there has been no judge-made common law of relief from penalties with which the equitable doctrine could fuse. As Parliament has directed that those equitable principles shall continue to apply, fusion is a distraction from the application and development of the (equitable) penalty doctrine.

Gordon on Federalism and Chancery in the US

Jeffrey Steven Gordon, Associate-in-Law, Columbia Law School, has posted Our Equity: Federalism and Chancery, which appears in the University of Miami Law Review 72 (2017): 176-268:

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 the federal courts is a distinctive and untold story about equity's interaction with judicial federalism. Conventionally, this is a tale of two equities: homogeneous equity, where federal courts apply uniform nonstate equity, and heterogeneous equity, where federal courts apply state equity. This Article demonstrates that homogeneous federal equity commenced in 1809, about a decade earlier than previously thought, and that there is a deep and unappreciated tension at the center of heterogeneous federal equity.

The primary contribution of this Article is to recover a third federal equitable tradition, a middle ground between the extremes of homogeneity and heterogeneity. This third conception of federal equity—the facilitative conception—is revealed by a close reading of federal equity cases before 1809, a period to which equity scholars have paid scant attention. The facilitative conception originated in the earliest years of the Republic, was sensitive to the legitimate interests and activities of the states, and contributed to the construction of the early United States. Using a key supplied by the facilitative conception of federal equity, this Article proposes a system of shifting presumptions to systematize and structure the equitable remedial rights doctrine.