The distinction between "law" and "equity" might be purely of academic and historical interest only were it not for a quirk of the Bill of Rights: the right to trial by jury in civil cases is only guaranteed for cases at "law". "Equity" cases, on the other hand, get a "bench trial": there is no jury and the judge decides all the fact disputes, as well as all the legal disputes.

Trial by Jury

Sometimes, I think we would all be better off if some cases were decided by trial by ordeal or trial by duel. Divorces and probate contests, for example, really ought to be decided by combat with deadly weapons, in my humble opinion. Alas, the only choices we have today are between trial before a judge and trial before a jury.

The right to trial by jury in a criminal case is an important fundamental right in the Anglo-American tradition. Blackstone, in his Commentaries, says, "The right of trial by jury, or the country, is a trial by the peers of every Englishman, and is the grand bulwark of his liberties, and is secured to him by the Great Charter." 4 Blackstone, 849-50. In fact, Magna Carta does not refer to "trial by jury", but Article 36 mentions a "writ of inquisition" and this, according to Blackstone and others, implies a jury. In the United States, the Constitution guarantees a jury trial for crimes, Article III, § 2, cl. 3, and the Sixth Amendment further ensures "an impartial jury of the State and district wherein the crime shall have been committed".

In civil cases, however, when a person,s money, rather than their life or liberty is at stake, the right to trial by jury is not so sacrosanct. A jury trial is denied for purely equitable claims. A jury trial can also be waived, to save time and money, in which case the judge tries all claims, legal and equitable. For civil cases in the United States, the Seventh Amendment preserved the right of trial by jury for "suits at common law":

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

"Common law" here means law courts, as opposed to courts of admiralty or equity. Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 446 -48 (1830). Before the Twentieth Century, courts of law, equity and admiralty really were different courts with different procedures and different remedies. Today, all these functions have been combined in one court system, but historically we can recognize that some remedies were sought in "law" and others in "equity". If a party seeks only an equitable remedy, there is no right to a jury and the case will be tried and decided by a judge alone.

Equitable Remedies

There is essentially only one remedy at "law": damages. A judgment is entered against the liable party ordering that party to pay a certain sum of money. As long as money is sufficient to resolve the dispute, this is the preferred remedy. The maxim "equity follows the law" reflects this preference. Sometimes, however, money isn't good enough, or a better way is recognized. SEF's writeup mentions the remedy of "specific performance": in the example, Campbell's Soup wasn't satisfied with damages for the failure to deliver the special tomatoes, it wanted those tomatoes. Some other examples include:

  • Rescission (cancellation) of the contract for fraud or mistake:
    When you want to get "out of" a contract: as the tomato farmer did
  • Foreclosure of a mortgage:
    When you take collateral and sell it to pay a debt
  • Accounting of a trust or partnership
    When you don't know how much you are owed

There are practical reasons we might want to continue to entrust these remedies to judges rather than a trial by jury. In damages cases, all a jury needs to do is decide who is liable and how much. Equitable remedies, on the other hand, are generally more complicated and require some supervision and judgement (as opposed to merely a judgment) and some time to resolve. In rescission, for example: the judge must order the parties to do everything necessary to put them back where they started: restore the status quo ante. In foreclosure and accounting, the judge supervises a process which could take months: longer than we would want to keep a jury impaneled.

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