Gallanis on Revolutions in Trust Law

Thomas P. Gallanis, George Mason University Antonin Scalia Law School, has published American Revolutions in the Law of Trusts, which appears in the ACTEC Law Journal:

American trust law is revolutionary. It departs in fundamental ways from the trust law of other major common-law jurisdictions, such as England, Australia, Canada, the Hong Kong Special Administrative Region, New Zealand, and Singapore. It also differs greatly from the trust law of the major civil-law countries that have adopted the trust, such as mainland China and Japan. This Article identifies five revolutions in American trust law. Each revolution is examined in its historical context and with regard to its lasting effects. Together, the five revolutions explain American trust law's distinctiveness.  

--Dan Ernst 

Mumford on Holmes and Anglo-American Equity

Ann Mumford, Dickson Poon School of Law, King's College London, has published "Re-Enacting The Judicial Philosophy Of Oliver Wendell Holmes, Jr.: Saunders v. Vautier and Claflin v. Claflin Compared"open access, in Comparative Legal History.

Oliver Wendell Holmes, Jr. (NYPL)

Oliver Wendell Holmes Jr. sat on the Supreme Judicial Court of Massachusetts in 1889, when, in the case of Claflin v Claflin, he joined the decision that a trust may not be modified if the intention of the testator would be undermined. Claflin rejected Lord Cottenham's reasoning in Saunders v Vautier that, under certain circumstances, beneficiaries may compel the termination of the trust and transfer the property to them. Claflin v Claflin and Saunders v Vautier are perhaps the two most famous cases in Anglo-American Equity. Through a detailed examination of manuscripts, this article offers a comparative expansion of the US and English histories, and particularly considers the role played by Holmes. Re-enactment theory offers the possibility of creating, or reliving, the intellectual process that led to Claflin, thus revealing a significant moment in the history of US federalism. 

--Dan Ernst 

Schmidt and Funk on the Supreme Court's "Equity Docket"

Thomas P. Schmidt and Kellen Funk, Columbia Law School, have posted The Equity Docket, which is forthcoming in the NYU Law review:

The Supreme Court has two sides. On its ordinary docket, the Court answers questions of law after briefing and oral argument. On its extraordinary docket, the Court fields applications from litigants asking it to equitably set the status of a new law or executive action while a lawsuit is pending. Only a decade ago, the equity side was an obscure backwater of Supreme Court practice; today it is where the Court confronts some of the most contested and consequential public law disputes. This aspect of the Court’s work has taken on various labels—the shadow docket, emergency docket, interim docket, to name a few. This Article proposes the “equity docket.” That term best captures what is distinctive about this growing part of the Court’s business, and helps us to get a normative handle on where the Court has gone right—and wrong.

Any judicial practice grounded in equity will be vulnerable to the charges of arbitrariness and lack of transparency; those critiques are as old as John Selden’s rebuke about the chancellor’s foot. And variants of those critiques have been ubiquitous in discussions of the equity docket. Historically, though, equity was able to reform itself successfully in response to these charges. Our basic contention is that the Court has assumed a far-reaching new form of equitable jurisdiction without also accepting the historical guardrails that both limited and legitimated equity.

The Article makes three contributions. First, it links the emergence of the equity docket to the Court’s broader engagement with the history of federal equity in recent years—what some have called the “new equity.” Second, it argues that the Court has lost sight of important constraints that kept equity in an adjectival position. And finally, it suggests that the Court has impoverished the inputs of equitable decisionmaking by relying almost exclusively on hastily formed predictions about the merits. In place of the Court’s current approach, we propose a model of a more objective, “filtered” conscience, drawn from the history of equity, that would give proper weight to precedent and keep the equity docket from engulfing the Court.

--Dan Ernst 

"Essays on the History of Equity"

Essays on the History of Equity, edited by David Foster and Charles Mitchell, University College London, has been published by Bloomsbury/Hart.  The contributors are quite eminent and able.

When we speak of 'equity', do we mean Aristotelian epieikeia, civilian aequitas, a theological or juridical conscience, the common law concept of the 'equity of the statute', or merely the rules applied by the Court of Chancery before 1875? The purpose of this volume is to chart the evolution of equity in English legal history from the medieval period to the present day. Whether by investigating the historical foundations of the modern law, the jurisprudential underpinnings of the equitable jurisdiction, or the socio-political context of discrete legal developments, this collection exposes the strands of thought which 'equity' comprises and the mechanisms by which its rules evolved.

 --Dan Ernst.  TOC after the jump.

Barnett and Barnett on the Burwood Ejectment Case

Katy Barnett, Melbourne Law School, and Lynne Barnett have posted "Equity’s Darling" and the Burwood Ejectment Case: A Turning Point in Colonial Australian Law, which appeared in Australian Law Journal:

The Burwood Ejectment case arose when the ad hoc executor and trustee of a will in early colonial Sydney sold off Burwood Estate to meet the testator's debts, after receiving a court order empowering him to do so. Twenty years later, the testator's de facto wife and children successfully voided the sale. The purchaser was ejected, notwithstanding the fact that he was a bona fide purchaser for value without notice. The decision undermined confidence in security of transactions in the Colony and created a political furore and ongoing disputes. It is suggested that the case was a contributing factor to the creation of the Judge in Equity in New South Wales and illustrates broader issues with security of title and the political and legal organisation of early colonial Australia. 

--Dan Ernst 

Gómez-Arostegui on the Universal Injunction and English Chancery Cases

Tomás Gómez-Arostegui, Lewis & Clark Law School, has posted Universal Injunctions and Attorney General v. Vernon (Ch. 1684-1685/6):

On May 15, 2025, the Supreme Court will hear oral argument in a trio of cases on the emergency docket. Although the cases all concern birthright citizenship, the United States has asked the Court to address a single issue: whether universal injunctions are lawful as a general matter. A universal injunction protects persons that a defendant will allegedly harm, but who are not plaintiffs in the suit.

English legal history could play a major role. Several Justices have recently signaled that they will adhere to a line of decisions from the Court in which it ruled that federal courts can only employ equitable remedies that were known to the English Court of Chancery in 1789. Thus, a central issue before the Court this month might be whether the English Court of Chancery in 1789 could issue something akin to a universal injunction.

In this essay, I first lament the lack of primary research in the briefing. Unfortunately, no one to my knowledge has dived deeply into the Chancery cases before 1789. Thus far, scholars have cited only a handful of printed reports from the period, and no one has explored the countless unpublished suits that survive in the records of the National Archives. Indeed, I do not believe any scholar has cited even a single actual order or decree from the Chancery's official records.

Second, I address a 17th-century Chancery case that some might believe supports non-party protective relief in equity. To show it does not, I review all the records in the case, including manuscripts from the Court of Chancery and elsewhere.

Lastly, I conclude with some thoughts on how the Court should proceed, particularly given how little 18th-century work has been done on universal injunctions thus far.

--Dan Ernst

Fleming's "Equity and Trusts in Sanskrit Jurisprudence"

 Christopher T. Fleming has published Equity and Trusts in Sanskrit Jurisprudence in the British Academy Monographs of Oxford University Press:

This monograph outlines the core principles of Equity and Trusts in Sanskrit jurisprudence (Dharmasastra) and traces their application in the practical legal administration of religious and charitable endowments throughout Indian history. Dharmasastra describes phenomena that, in Anglo-American jurisprudence, are associated with courts of equity: the management of religious and charitable trusts; and the guardianship of those who lack legal capacity. Drawing on Sanskrit jurisprudential and philosophical texts, ancient inscriptions, Persian legal documents, colonial-era law reports, and contemporary case law, Equity and Trusts in Sanskrit Jurispudence demonstrates that India's rulers have drawn on rich and venerable Sanskrit jurisprudential principles of equity and trusts in their efforts to regulate religious and charitable endowments. This book presents the history of India as a history of trusts, revealing how the contemporary law of Hindu religious endowments is subtended by a rich mélange of Sanskritic, Persianate, British, and constitutional jurisprudential principles.

--Dan Ernst

Kim on Australia's Procedure Act of 1854

David Kim, of the Australian law firm Banki Haddock Fiora, has posted “A Turbid Admixture”: The Long Shadow of the Common Law Procedure Act 1854, which appeared in the Adelaide Law Review:

The innovations of the pre-judicature period continue to haunt us. In the 1850s, in response to agitation for procedural fusion, reforms were introduced to allow for the grafting of equitable remedies onto common law courts and vice versa. This well-intentioned blending of jurisdiction spawned two novel remedies that are with us to this day: equitable damages and the lesser known 'common law injunction'. This article explores the Australian jurisprudence that has coalesced around the common law injunction and surveys the difficult theoretical problems that come to the fore when attempting to define its nature and scope.

--Dan Ernst

Gallanis on Revolutions in American Trust Law

Thomas P. Gallanis, George Mason University Antonin Scalia Law School, has posted American Revolutions in the Law of Trusts, which is forthcoming in the ACTEC Law Journal:

American trust law is revolutionary. It departs in fundamental ways from the trust law of other major common-law jurisdictions, such as England, Australia, Canada, the Hong Kong Special Administrative Region, and Singapore. It also differs greatly from the trust law of the major civil-law countries that have adopted the trust, such as mainland China and Japan.

This Article identifies five revolutions in American trust law. Each revolution is examined in its historical context and with regard to its lasting effects. Together, the five revolutions explain American trust law's distinctiveness. The Article's primary aim is to shape how American trust law is understood, historically and today.

The Article's contribution is as fundamental as periodization. We used to teach that the "Roman Empire" was followed by the "Early Middle Ages." This periodization was transformed by the pioneering scholarship of the historian Peter Brown. Professor Brown is credited with creating the field of Late Antiquity, approximately AD 250-750. Analogously, this Article's framework of the five revolutions is designed to shape our understanding of the history and development of America's distinctive trust law.

Part I of the Article identifies and analyzes the five revolutions. Part II offers a personal assessment of American trust law's distinctiveness. A brief conclusion follows.

--Dan Ernst

Lodz Anglo-American Legal Workshop

[We have the following announcement.  DRE.]

Lodz Anglo-American Legal Workshop

Organized by the Centre for Anglo-American Legal Tradition, University of Lodz, Academic Year 2024/2025

23 October 2024 – Jan Kunicki (University of Warsaw), The Significance of Roman-Dutch Law
in Scope of the Law of Marriages in Contemporary Zimbabwe.

19 November 2024 – Prof. Cynthia Nicoletti (University of Virginia), The Grant of “Possessory
Title” and the Special Field Orders No. 15.

04 December 2024 – Dr Ashley Hannay (University of Manchester), "Damna Usuum":
Rethinking the Passage of the Statute of Uses (1536).

29 January 2025 – Rosalind Ackland (University of Cambridge), Edward Coke’s Classical
Common Law.

05 February 2025 – Michał Zapała (University of Lodz), Life and Codification Activity of David
Dudley Field.

19 March 2025 – Prof. Jan Halberda (Jagiellonian University), The Introduction of Good Faith
and Fair Dealing into American Contract Law. Between Common Law and Civil Law.

All workshops will take place in hybrid format. In-person par9cipants are invited to join us at the Centre for Anglo-American Legal Tradi9on (Faculty of Law and Administration building, room 0.09, ground floor). Online viewers must register to aIend each workshop. The registration form will be distributed online via social media approximately one week before the workshop. All workshops start at 5PM (Poland and most European countries) / 4PM (UK and Ireland) / 11AM (US Eastern Coast). In case of any question please don’t hesitate to contact us by emailing Anglo-AmericanLT@wpia.uni.lodz.pl.

Swain on Contractual Rectification

Warren Swain, University of Auckland Faculty of Law, has posted Not Worth the Paper it's Written on: Contractual Rectification: An Historical Account, which appeared in the Journal of Equity 17 (2023): 161-180.

Written contracts have been important for millennia. They bring certain evidentiary advantages. Problems may also arise, however, when the written document fails to reflect the intentions of the parties. This is why the equitable doctrine of rectification is so important. In certain limited circumstances, it allows the written words in the contract to be modified. In recent decades, there have been considerable debates about the proper scope of rectification. These questions cannot be understood properly without a proper grasp of the history of the subject. Rectification did not develop in isolation. It was shaped by developments within the law of contract, including the parol evidence rule, the rise in commercial contracting and was impacted by the way that contracts came to rationalised. Set alongside these considerations there is a different tradition of preventing unconscionable behaviour in equity.

--Dan Ernst

Conley on Originalism and Comparative Law

Anna Conley, University of Montana Alexander Blewett III School of Law, has posted The Inevitability of Adaptability: Comparative Contributions to Understanding Originalism, which is forthcoming in the Emory International Law Review:

What can comparative law teach us about originalism as a constitutional interpretation method? After synthesizing existing comparative analyses, this article seeks to redefine comparative law’s role in understanding originalism. When defining originalism strictly to require adherence to fixed original meaning, originalism is not used by courts anywhere in the world. Instead, courts use history purposively to understand the intent behind constitutional text as one of many methods of interpretation. Comparative works suggest historical constitutional interpretation has a complex relationship with rights, politics and culture.

Comparative law can provide not only descriptive understandings of originalism but also interrogate its mandate that present-day judges adhere to fixed historical definitions of constitutional provisions. This article challenges originalism’s normative mandates by proposing principles about the movement of law between and within legal systems gleaned from comparative law. Two proposed principles are: (1) the “interpretive valve principle” that legal systems need mechanisms to adapt to societal changes, and that legal systems will generally work around artificial barriers to interpretive valves; and (2) the “legal transplant principle” that legal transplants always change from their origin system to the receiving system. Islamic law’s development throughout the Islamic diaspora, Europe’s reception of Roman law, and post-colonial common law systems’ integration of English law highlight these fundamental tenets.

This article applies these principles to equitable originalism, a strict originalist philosophy fixing the meaning of “equity” in Article III to English chancery courts’ equitable powers in the 1780s, and limiting federal judges’ equitable powers to that fixed meaning. Equitable originalism is an artificial barrier to equity, which is an interpretive valve in the U.S. legal system. This dispositive freezing of equity is seen in no other former British colony, and stymies development of equity’s inherent corrective function. Equitable originalism will likely face limited success as a sustainable constitutional interpretation method because it is anomalous to the way law moves and develops.

--Dan Ernst

Mossoff on Injunctions for Patent Infringement

Adam Mossoff, George Mason University Antonin Scalia Law School, has posted Injunctions for Patent Infringement: Historical Equity Practice Between 1790-1882:

A significant debate in patent law today concerns what remedy a patent owner may receive when a court finds a defendant liable for patent infringement. In eBay v. MercExchange (2006), the Supreme Court held that courts must use a “four-factor test historically employed by courts” for issuing injunctions that represented a “long tradition of equity practice.” Chief Justice John Roberts further claimed in a concurrence that, from “the early 19th century, courts have granted injunctive relief upon a finding of infringement in the vast majority of patent cases.”

Both of these historical claims are conventional wisdom today in law and scholarship, and both claims are empirically unverified. This article tests both historical claims in reporting the results of a database of 899 opinions in which federal courts sat in equity in patent lawsuits. The database comprises opinions by trial courts and appellate courts in lawsuits filed between 1790 and 1880 that are compiled in the Federal Cases reporter.

The database confirms and challenges the conventional wisdom. First, eBay is wrong: there was no four-factor test in the “long tradition of equity practice” in patent cases. In the 899 opinions, no judge applied a four-factor test in granting an injunction, either for a permanent or a preliminary injunction. Second, Chief Justice Roberts is correct: courts did grant permanent injunctions in a vast majority of cases as a remedy for patent infringement. In the 899 opinions, courts awarded permanent injunctions in 93.7% of the cases in which a defendant infringed a valid patent. Given the stark absence of a four-factor test, the article concludes by describing the historical equitable jurisprudence applied by federal courts. Based on the opinions, it describes how courts applied the same equitable doctrines and principles in patent cases as in redressing continuing trespasses of real property, protecting patents as much as they protected real estate and other property interests.

--Dan Ernst

PhD Fellowship on the Court of Chancery during the English Civil War

[We have the following announcement.  DRE]

University College London and The National Archives are pleased to announce the availability of a fully funded Collaborative doctoral studentship from 1st October 2024, under the Arts and Humanities Research Council (AHRC) Collaborative Doctoral Partnership Scheme.

The PhD project will investigate the records of the Court of Chancery during the English Civil War and Interregnum (c. 1640-1660). The key aims of this project are to better understand how the Court of Chancery was being used by litigants between 1640 and 1660, and to unlock the records of this court through original research and cataloguing. The project has intentionally broad research aims to allow the student to develop their own research questions and answers based on discoveries in these collections. Their initial investigation of these records will provide them with case studies, which can be approached in a variety of ways depending on the student’s interests.

The richness of the records, the high stakes of the litigation, and the political uncertainty of the period promise to make this project an insightful and important archival study which will serve as a benchmark for future studies.

The key research questions of the project are:

• How did the Court of Chancery function during this tumultuous period?
• How and for what reason did litigants use this court?

Applicants should ideally have or expect to receive a relevant Masters-level qualification or be able to demonstrate equivalent experience in a setting involving knowledge of and critical reflection on relevant topics, such as Legal History, Constitutional History, and Political History. Suitable disciplines are flexible but might include Law or History.

As a collaborative award, students will be expected to spend time at both the University and The National Archives.

Any questions should be directed to UCL’s Faculty of Laws PhD team at phd-law@ucl.ac.uk

Applications will be considered following the 24th June application deadline, initially to be short-listed for interview.  Interviews will take place online, via Zoom, in July 2024.

[Tuition fees up to the full-time home rate for PhD degrees. The UKRI Indicative Fee Level for 2024/25 is £4,786 for full-time home students, plus an annual maintenance stipend which will be £21,237 in academic year 2024/25.  Closing date: June 29, 2024.]

Waddilove on Equity in 1600

D.P. Waddilove, Notre Dame Law School, has posted Aspects of Equity in 1600: Wills, Forfeitures, and Trusts, which is forthcoming in Essays on the History of Equity, edited by David Foster and Charles Mitchel:

The Court of Chancery in 1600 stood somewhere on the bridge between medieval dispenser of ad-hoc justice and sclerotically rigid Regency court of punctilio. Equity was in an uncertain state, no longer unpredictably free-form, but not yet driven to the regularity of fully precedential lawlikeness.

At the time, the Great Seal was in the hands of Sir Thomas Egerton, Lord Keeper from 1596 to 1603, and Lord Chancellor (as Lord Ellesmere) from 1603 to his death in 1617. Although recognized in his own day and immediately afterward as particularly significant for the development of equity, legal history has tended to disregard him thanks to overreliance upon printed reports, which begin to cover the court meaningfully only after his tenure.

This paper, based on a comprehensive review of the daily record of the court, the Chancery Register, for the legal year beginning 1600 (9 October 1600 - 8 October 1601), considers aspects of equity to assess their state of development and shed light on Egerton's influence. Supplemented with the manuscript Chancery reports first printed by Professor Hamilton Bryson in Selden Society volumes of 2000-2001, it considers three major areas of equitable jurisdiction. Two of these, securities (such as bonds and mortgages) and trusts, are often considered the main jurisdictions of Chancery. The third, disputes over testamentary matters and decedents’ estates, became stereotypically associated with Chancery in Dickens's Bleak House, and also formed a major aspect of equitable jurisdiction. This paper thus sheds light on the nature of equitable development in these major areas in an under-studied period.

--Dan Ernst

Foster on Enforcing Crown Forfeitures in Equity

David Foster, University College London Faculty of Laws, has posted Fraud, Trusts and Trusting: Enforcing Crown Forfeitures in Equity, c.1570–1620, which is forthcoming in the Journal of Legal History:

Sir Edward Coke (NYPL)

Conveyances with informal agreements to hold for the benefit of the transferor initially proved efficacious in avoiding statutory forfeiture provisions. In the late sixteenth century, the equity side of the Exchequer developed a capacious doctrine of revenue fraud designed to capture such informal arrangements and to subject the transferor to liability for crown forfeitures. Initially drawing inspiration from the ‘badges of fraud’ in the Statute of Fraudulent Conveyances 1571, the Exchequer quickly lowered the evidentiary threshold required to prove a conveyance fraudulent. A key badge of fraud was an ‘entrusting’ of the transferee by the transferor. The presence of a conveyance ‘in trust’ eventually became the sole evidence required to hold certain conveyances fraudulent under the statute. In the longer term, these cases became the precedential basis for holding the beneficiary’s right under a trust liable to forfeiture as a matter of doctrine.

--Dan Ernst

Walsh on the Assignment of Choses in Action in England and Australia

Xavier P. Walsh, a recent honors graduate of Sydney Law School and, more recently, Tipstaff in the Equity Division of the Supreme Court of New South Wales, has posted Voluntary Assignments of Legal Choses in Action in England and Australia After the Judicature Act 1873, which appears in the Journal of Equity 17 (2023): 59:

The assignment of debts and other legal choses in action is commonplace. The required formalities for a voluntary equitable assignment, before and after the introduction of the Judicature Act 1873, however, have long been the subject of controversy. This article seeks to ascertain why England and Australia have apparently diverged in relation to the required formalities for voluntary equitable assignments of debts and other legal choses in action. This aim necessitates consideration of the principles relevant to voluntary equitable assignments prior to the introduction of the Judicature Act 1873. Consequently, this article will seek to establish that a voluntary equitable assignment may be effected orally in England, whereas signed writing is necessary in Australia today. After demonstrating that English and Australian law currently differ on this point, this article will attempt to explain why these jurisdictions have diverged, by reference to what is different about the English understanding of the law relating to voluntary assignments of debts and other legal choses in action.

--Dan Ernst

Petryshyn on the Fusion of Law and Equity

Alessandro Petryshyn, Lancaster University Law School, has posted Fusion of the Common Law and Equity: A Strictly Procedural Reform or a Substantive Breakthrough?

This paper analyses whether the outcome of the Judicature Acts has merged the common law and equity solely in procedure or whether their fusion was intended to (and eventually did) become substantive and altered the rights of the parties. Considering not only British, but also broader Commonwealth examples, the discussion is far from being conclusive.

--Dan Ernst

Foster on the Express Trust

David Foster, University College London Faculty of Laws, has posted Historical Conceptions of the Express Trust, c 1600-1900, which is forthcoming in Philosophical Foundations of the Law of Trusts, ed. Degeling, Simone and Hudson, Jessica and Samet, Irit, a volume in the Oxford University Press's series, Philosophical Foundations of Law,

This chapter discusses the historical and analytical conceptions of the express trust in the period c 1600 – 1900. Particular emphasis is placed upon the historical conception of the trust as a ‘confidence annexed in privity’ and the slow reification of the beneficiary’s right under a trust in the case law and treatise literature of the period. This aspect of the trust’s history is explored through the development of rules governing the exigibility and enforceability of the beneficiary’s right and provides historical context to the more analytical treatments of the trust in the mid-to-late nineteenth century. The chapter concludes with a consideration of the significance of the school of analytical jurisprudence in shaping modern conceptions of the trust – most notably by applying the language of rights in rem and rights in personam to equitable rights. 

--Dan Ernst

Bryson's Edition of Chancery Cases, 1660-1673

Just published: W. H. Bryson, ed. Reports of Cases in the Court of Chancery from 1660 to 1673 (Tempe: Arizona Center for Medieval and Renaissance Studies, 2022):

This edition of Chancery cases from the Restoration of Charles II in 1660 to the beginning of the juridical tenure of Lord Nottingham in 1673 includes all of the Chancery reports, both in print and in manuscript, known to date from this period. It also adds to the Chancery canon the law reports included in Lord Nottingham’s prolegomena. These reports come from the judicial tenures of Edward Hyde, Earl of Clarendon, Sir Orlando Bridgman, and the Earl of Shaftesbury, three very different types of equity judges. Yet there is a consistency among them, which shows the continuity of the administration of the court. These consolidated reports are presented chronologically according to the modern method of presenting cases.

--Dan Ernst