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. In the time of Edward I and III it was believed that the chancellor, who already had a common-law jurisdiction and dispensed extraordinary legal remedies, would mould his decrees in accordance with the needs of petitioners, and that the system would always remain flexible and elastic. But, like all legal systems which lean on remedies, the system became technical and rigid. By importing this inflexibility and rigidity into equity, notwithstanding its more liberal procedure, the very purpose of creating equity was defeated, as Roscoe Pound so ably shows in one of his notable articles.
Date of Authorship for this Version
Borchard, Edwin, "Declaratory Action – The Next Step Beyond Equity" (1946). Faculty Scholarship Series. Paper 3626.