Robin Kar

Many philosophers of the private law could profit from a close read of a new article by Professor Larissa Katz entitled Equitable Remedies: Protecting “What We Have Coming to Us.”  The article draws a distinction between “what is ours” (the content of which is defined by various bodies of private law like property and contract, according to Katz) and “what we have coming to us” (which is, roughly, what we would have if we were to have full access to what is ours, without obstruction, diversion, or expropriation from anyone with notice).

According to Katz, private law obligates parties to respect what is ours, in part by offering legal remedies that allow us to hold others accountable to pay for losses associated with their failures to meet those obligations. Private law gives us normative powers, which can help us define what is ours, thus helping us to plan our lives and exercise our liberties. There is, however, always a gap between what is ours and what we have coming to us because enjoyment of what is ours sometimes depends on how others act or exercise their normative powers. This gap cannot always be closed by standard legal remedies, insofar as they only compensate for losses. Professor Katz’s thesis is that many equitable remedies from diverse areas of private law can be understood in a unified manner as seeking to close that gap by preventing others (sometimes even third parties who are not subject to standard legal remedies) from obstructing, diverting, or expropriating what is ours, thereby protecting what we have coming to us.

Despite Katz’s terminology, I do not think it is ultimately productive to think of Katz’s distinction (i.e., between “what is ours” and “what we have coming to us”) in purely temporal terms. On the side of “what is ours,” Katz includes not only existing property rights but also rights to future contractual performances. The gap she has in mind seems to be less about time and more about an important limitation of legal remedies—and hence of the law—to ensure that we can enjoy fully what is ours without equity’s help.

Let us examine one of Katz’s future-oriented examples from contract law to elucidate the distinction she has in mind.  Katz asks the reader to consider a contract for the sale of Blackacre. If the purchaser were to pay the price of the land and the seller were to refuse to transfer title, then—Katz correctly observes—the purchaser could seek specific performance in a claim for breach of contract. Interestingly, this legal remedy can function not only as an in personam right to performance from the seller (which falls within “what is ours,” in her terminology) but also as an equitable lien that attaches to the land and can be asserted against any subsequent buyer with notice of the earlier agreed-upon sale. Because there is no privity of contract between the original claimant and these subsequent buyers, and because there is no loss arising from any entitlement that both these parties agreed to, this aspect of the equitable remedy is an important legal datum that has thus far received too little attention in discussions of contract remedies. Katz suggests that the existence of this equitable lien reflects an interest in protecting not just what is ours but also what we have coming to us.

Similarly, if the original seller of Blackacre were to transfer title but not receive payment, the seller would typically have not only a remedial right to the purchase price (which is part of what is “ours,” in Katz’s terminology) but also an equitable lien that would allow the seller to resort to the land to secure that payment. That lien would typically run against some third parties (who acquire the land with notice of the original sale) and so could not arise simply from the agreement in the contract either. Here is another legal datum that resists many familiar explanations, and—once again—Katz suggests that its existence reflects an interest that goes beyond protecting what is ours to protecting what we have coming to us.

I find these aspects of equitable remedies fascinating. There appear to be aspects to these remedies that become available only once there is a contract but also go beyond what many contract theorists have sought to explain in the context of property sales. In identifying these features, Katz is clearly profiting from her extensive work in property law and how it operates. But she is also—I think—articulating one specific way that legal remedies can be “inadequate” (which is a common trigger for equitable remediation)—thus clarifying an important aspect of the limits of law and the importance of equity.

An account like this would surely profit from a wider look at equitable remedies in a broader range of contexts. Katz does not disappoint in that regard. She offers parallel and often intriguing accounts of puzzling aspects of equitable remedies in areas ranging from property law and nuisance law to unfair competition, the law of wills, and civil procedure. Katz’s explanations of these broader doctrinal facts are not the only ones available, and different readers will find different accounts more or less compelling. Still, this broader discussion is greater than the sum of its parts. Its cumulative impact is to offer generous support for the claim that legal theorists in a number of areas may well profit from close attention the distinction she draws between what is ours and what we have coming to us. That alone is a reason to read this article carefully.