Essay by Vernon Valentine Palmer
This Essay argues that different constitutional structures and historical experiences have played a large role in the development of judicial equity. The comparison of English and French history offers two contrasting models for institutionalizing and containing judicial equitable power. England's experience led to a bicameral court structure that ultimately minimized equitable power as a source of constitutional friction and avoided protracted constitutional struggle. France's experience, by contrast, led to a long constitutional confrontation during the Ancien Régime between the parlements and the monarchy, which culminated at the French Revolution in the introduction of English equity's polar opposite, a system of “legislative equity.” Thereafter, constitutional mechanisms banished equity from the field of private law. This constitutional arrangement still has official support, but judicial equity has in modern times made a quiet return from exile.
About the Author
Vernon Valentine Palmer. Thomas Pickles Professor of Law, Tulane University School of Law.
Citation
73 Tul. L. Rev. 1287 (1999)