Article by Vernon V. Palmer
Equity may be called the principle and the process of tempering the excesses, the inequalities, and the moral blind spots of the legal order. For the Roman jurist Papinian, its function was “to aid, supplement or correct the civil law.” Within the English system, equity softened or abated the rigor of the common law with the Conscience of the Chancellor. This article is the tale of these two equities and the less-heralded child to which they gave birth. This article will examine the role of equity in Louisiana.
It should be said first that equity is an overloaded word that may signify at least four things at once: a high principle of justice of debatable definition, the methods of applying that principle (how, when, and by whom equity is “done”), the distinct body of doctrines or rules emerging from that application (Equity as opposed to strict “law”), and, finally, the English judicial institution, the Court of Equity or Chancery, which historically bore that name. It would be impossible to discuss this subject without employing at times these various senses of the term, but this article primarily will focus upon the second, that is, upon the method or process by which equity is derived and applied in Louisiana. We should have little occasion to use the term in the sense of a judicial institution, for Louisiana is a unitary system without a specialist court as in the Anglo-American tradition.The “courts of equity” in Louisiana can only refer to the regular courts, and within these courts there are no panels or divisions that administer a body of law called “Equity” in the English sense. We therefore will have little need to speak of equity as a distinct mass of legal doctrines.
Louisiana equity lacks the categorical subject matter of a field of law. There are no compilations or treatises bearing that name, no law courses or bar specialty in “Louisiana Equity.” To the extent that there is a discrete subject matter, it is one with no guiding dimension. It amounts to a heterogeneous collection of rules, doctrines, and cases that courts have innovated or that legislation has assimilated into the system. Some have native roots, others originated in English Chancery, while still others may belong to both civilian and common-law traditions. The hallmark of these doctrines in Louisiana is simply an eclecticism that follows from the mixed nature of the legal system. Since this article focuses upon the methodology of equity in Louisiana, the actual content of these various doctrines will be examined here only to the extent that they disclose or illustrate the process by which equity is created or evolves.
There is, perhaps in every legal system and society, a general notion that develops about the proper place of equity. There may be an understood rule of recognition permitting a judge or jurist to determine whether the system functions properly within acceptable limits. This rule should permit an observer to discern whether a doctrine is of equitable or legal origin. For the Anglo-American lawyer, this rule of recognition is artificially simplified by institutional arrangements. An English jurist knows that rulings from the Court of Queen's Bench, particularly a ruling prior to the fusion of law and equity, cannot be considered “in equity,” even when it is admitted that the judge's decision filled a gap in the precedents and established a fair rule that no chancellor could improve upon. Equity for this jurist will appear to be equity when it is effected by the chancellor, even though he may intellectually appreciate that some equitable rules and considerations can be found in the common law itself.
Understanding equitable processes in Louisiana, however, necessarily must be different and more difficult. It is difficult to decipher the work of the courts, for there is no special set of hats worn by the judges in these situations nor any bright-line test pointing out whether a decision of the court should be classified as equitable or legal in nature. One might expect the decisions to reveal telltale signs or clues of equitable activity, but transparency is achieved only in certain instances. A Louisiana court engaged in equity frequently flashes no sign. Louisiana courts render equity in silence more often than they declare it out loud. This leaves us without sure guidance in delineating the sphere occupied by equity.
The classic civilian conception of equity sees the judge as a legislator of last resort who fills lacunas of the Code when positive law is silent. On this view, it is Article 21 of the Louisiana Civil Code of 1870, the Directory Provision, which should contain the basic rule for recognition of equity in Louisiana. The place reserved for equity would be the comparatively narrow role of traditional gap-filling. The nature of the process would be judicial and interstitial and founded upon analogy patterned after the existing legislation. When this conception has been applied in a normative sense to evaluate the performance of the Louisiana courts, its partisans must invariably find that the judges have vastly exceeded their mandate, particularly in transplanting alien equity to Louisiana soil and in transforming the Directory Provision into a “British” article.
We must pay homage to the classic view, for certainly it was the historical position taken by the founders of our system, and it still carries influence with some of our judges. Recently, it was officially restated by the code revisers without any important change of terms. Nevertheless, I shall argue that this view has become increasingly unrealistic. The truth is that Louisiana judges have appropriated to themselves what I shall call an inherent equity function that is characterized by great discretion as to methods, sources, and opportunity for intervention. Long ago, the process broke free of the Directory Provision and the rule of recognition in Louisiana accordingly shifted ground. Equity does not only consist of gap-filling. It has now become (to put it as broadly as the evidence suggests) the exercise of discretion in the pursuit of greater fairness. The flaw in the classical view is that it tends either to deplore or to dissimulate the reality of Louisiana's distinct development and thus brands as illegitimate the vigorous process that has become the hallmark of our system.
In this article, I shall attempt to present the modern process at work as well as the transformation it has undergone. The first section examines equity as viewed by the founders on the eve of codification and traces the political assumptions upon which their view rested. The second section passes directly to the modern picture. Here, I present a functional view that recognizes the inherent equity powers exercised by the judges. This functional view also encompasses the role of legislative equity, the circular movement of equity in a unitary system, the effects of historical relativism, and judicial equity as a source of law.
The third section analyzes the classical civilian scheme of equity as presented by the Code's Directory Provision. It discusses the proper stance of the judge, the reality behind the notion of “gaps” in the law, the differences between gap-filling and interpretation, the application of this methodology to the general statutes, and concludes, by way of a leading example, with the judicial recognition of the principle of unjustified enrichment.
The fourth and final section discusses the process of importing foreign equitable ideas into Louisiana and the various passports and aliases under which they have entered the legal system. The analysis focuses particularly upon three doctrines—estoppel, laches, and contra non valentem—and attempts to distill the essential elements in their evolution.
About the Author
Vernon V. Palmer. Thomas Pickles Professor of Law, Tulane University. B.A., LL.B., Tulane University; LL.M. Yale University; D. Phil., Pembroke College, Oxford University.
Citation
69 Tul. L. Rev. 7 (1994)