Written by Leigh Anenson

I am writing this blog in support of my book, Judging Equity: The Fusion of Unclean Hands in U.S. Law, recently published with Cambridge University Press.

The book proceeded from the conviction that American equity is a subject of law worthy of study.  At a time when changes in the law are typically assumed to be made by legislatures, vast amounts of law continue to be created by judges.  Equity is one such area of judge-made law.  Its historically powerful role for the courts in fashioning reforms must never be forgotten.  Too little attention has been given to equitable principles and practices in the United States.  Equitable defenses, in particular, have largely gone unnoticed.  This book is directed at one essential defense – unclean hands.

Judging Equity: The Fusion of Unclean Hands in U.S. Law discusses how the “clean hands” doctrine came alive and whether courts were warranted in bringing it to life.  It focuses on the defense’s widening scope and influence by tracing its expansion into legal remedies, including damages.  It provides the background necessary to understand the defense, summarizes leading cases, and considers questions of what is and should be its definitive qualities.  It seeks to explain the persistence and evolution of the problem of fusion, which concerns the viability and desirability of engaging equitable doctrines in legal cases or vice versa.  Around the world, disputes and discussions about fusion are ongoing.

This book uses the experience of unclean hands to offer insight into the issue of fusion and suggests lessons it might offer for the future.  In addition to an examination of the defense itself, there is a more general discussion of equity, especially as it touches on the relations of equity and law.  Because equity intersects with many areas of law, the book should be of interest to scholars studying in the fields of obligations, remedies, courts, judges, and jurisprudence, among others.

Along with bringing an American perspective to the contentious conversation about law-equity fusion in other countries of the common law, another purpose in writing the book is to show why equity, and equitable defenses in particular, are impactful and important.  Equitable defenses operate as a second-order safety valves to combat unfair opportunism and otherwise help the law achieve its purposes.  They apply across-the-board in terms of subject matter and effectively eliminate rights.  Despite arising in a variety of commercial (and other) settings comprising unfair competition, contracts, corporate governance, and financial fraud, there has been very little attention to or study of them.

The clean hands doctrine, specifically, spans almost every conceivable controversy.  It has also been assimilated into statutory law. The defense is additionally reproducing and multiplying into more distinctive doctrines, thus magnifying its impact.  A number of state and federal courts no longer restrict unclean hands to equitable remedies or preserve the substantive version of the defense.

This book not only provides a historical and theoretical account of the defense, it analyzes cases in the federal courts and across the fifty states.  Investigating the muddle of opinions integrating equitable defenses into legal relief is difficult and time-consuming.  But doing so provides greater understanding of this outwardly chaotic and contested case law.  It must be emphasized that equity has not been earmarked for separate study in the United States.  During the previous century, it failed to benefit from the laborious process of systemization undertaken in other areas of judge-made law.  Because much less preliminary work has been done on equitable doctrines than those of the common law, the task of restating its principles and precedents is even greater.

A tertiary goal of the book is to renew interest in American equity as a connected field.  Following the procedural unions of law and equity, the latter subject was scattered among the many classes in the law school curriculum.  A description of various aspects of equitable doctrines and principles, if not equity’s essence, has since been lost.  New federal and state cases, however, have highlighted the enduring significance of equity.  As a result, legal scholars in the United States are beginning to study and reflect on the subject that might herald the revival of one of England’s most remarkable inventions.  This book is the first, but certainly not the last, of which will undertake an examination of American equity in the twenty-first century.

In summary, this book analyzed the legal status of unclean hands in the United States.  It is one of many issues of law-equity integration being addressed by judges across the common-law world.  State and federal courts have been grappling with whether, and under what circumstances, equitable defenses—including unclean hands—bar legal relief. To answer this query, the book clarifies the meaning of the law-equity mergers and suggests that courts consider the fusion of law and equity as part of a larger historical and analytical framework.  It interweaves the complex and conflicted chronicle of fusion and furnishes a fresh vantage from which to see this issue and its legacies.

Strict enforcement of the law sometimes rewards dirty-dealing and hypocrisy. This book explores an outlet in the legal system designed to correct injustice.