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Declaratory Action The Next Step Beyond Equity, 13 University Of Chicago Law Review 145 (1946)


It is a commonplace that the equitable jurisdiction of the Court of Chancery owes its origin (a) to the inflexibility and rigidity of the common law; (b) to the inelasticity of the common law procedure; and (c) to the ineffectiveness or inadequacy of the remedies provided by the common law. It is not so well known that the same limitations, especially after the merger of law and equity, explain the necessity for relief from the restrictions of equity. Whereas it was intended that equity should be flexible, elastic, and effective in meeting all situations (thus, the Constitution of 1787 itself assumes that cases in law and equity exhaust the legal reservoir of controversies and remedies), the fact is that equity has with the passage of time become crystallized as an established system, and has proved as inflexible and inelastic in its own field as was the common-law system in its restricted area. This was not the intention of those who founded the system.

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Chancery, constitution, Roscoe Pound, property