Monday, June 2, 2008

Equity as Process for Fairness, Dovetails With Rules and Law.

The Dance of Law and Equity.
It Takes Two.

Justice is Technicality Plus Fairness

Example Reference: The Democratic National Committee and Seating Delegates Issue 2008.
Resolved. Fair Enough. 

The process of that resolution here is the interest. How was agreement reached?

We have two historical approaches to resolving disputes: law, and equity. Law - a specified set of elements to be proven, then it is on to consequences.  Equity: what is fair. Often the "legal" result is noted, then eyes turn to fairness to see if the "legal" result should indeed be applied. Think of the inquiry into what is fair in the disposition or sentencing phase of a lawsuit - the culpability is established, now what to do about it.

The dance of justice.

In campaigns, the issue also arises -- rules, procedures with political parties.  Politics loves a dispute.  What approach best resolves people-issues, even when not in court.

Facts for our example here.  FN 1

In 2008, the Democratic National Committee rules established what dates would be used by the states in their primaries. See FN 1 for the full imbroglio. 

The legal result was clear:  forfeiture of states' voting rights at convention if they violated party rules in holding premature, unauthorized primaries with other problems resulting. Michigan and Florida finagled, violated, and got away with a lot of it.  The result:  let the violating delegates sit, but with half a vote each. Legally required? No.  Legal side and violation were clear. Stop there. But then look to long term:  Equity stepped in with a longer view toward a more complete resolution that would still be fair enough, mitigating a long-term problem's effect on a later election.

Approaches to resolution. FN 2

Law and Equity do approach matters differently, but in sensible living, they dovetail.  See the overview at FN 2.

Learn equity's rules.  It resolves more for a longer term than mere legalism.  Politics, cultural issues. Dirty tricks, how to correct after a sneaky move, how to counter lies, etc. Intentional misrepresentations, sabotage. 

Because the issue of resolving disagreements can happen without court action recurs, study the process. Focus here on the function of equities in resolving an issue. Take immigration, for example.  A strict legal result is divisive and harsh, and may even backfire with ten million enemies created, and the passage of time does resolve some issues. So rushing to legal remedies is not always the best way. Events, circumstances can lead to an area of conclusion that people can live with, so they do. 

A politician with restraint is devoutly to be wished, and usually gets more stable results.


Law and Equity. 

Law and Equity Approach Issues Differently

In law, there is an injured person, and the bad guy, the tortfeasor, if that can be proven.  Here, the umbrella lady pokes her weapon up the nose of the man in the rain. Guilty! 

But wait.  In equity, as a fairness offset, can she said that he intentionally bumped into her first, knocking her into the gutter, and had even molested her the evening before, and she is now late for a meeting and losing out on a big deal?

"Law" sets standards of behavior, against which the acts of a defendant are measured - each civil or criminal offense consists of "elements." "Equity" sets other kinds of standards of behavior, that are applied in fairness, sometimes leading to a less harsh result than may otherwise be afforded. Equity, or fairness, wafts about in issues of evidence, but may well be reined in so juries are not carried away by emotions. Equity can be described but not defined, and is highly discretionary. See a fine overview at ://

See discussion at FN 1. These aspects are now usually combined on one court, hearing both kinds of issues. Further discussion and exceptions at Joy of Equivocating, Bring Back the Maxims of Equity.

B.  Apply the principles - There are traditional principles in equity.

Get the facts down, what happened. What would the legal result be from those facts. The legal aspect is then set aside in the mind, and Equity supplements the issues: what is fair.  If fairness backs up the issues, fine.  If not, look again at the remedy, says the ideal theory. Equity fixes law where fair.

Start with basic facts:  In a criminal or civil case, did the defendant do the elements of the offense, and if so, what should the consequence be.  In a non-court case, as in a supposed violation of political party rules, just ask, did this person do it and what are the justifications.
  • Are there clear rules,
  • were they set in a way that included all parties at the time, considered factors known at the time,
  • were consequences spelled out,
  • was their agreement clear, and
  • were the rules followed as they had been promulgated.
Chronological components. If people now object to implementation of the rules, did they "exhaust their remedies" * to remedy the issue before the case got this far. Find that out.

* Exhausting remedies before coming to equity:

In terms of timing of the case itself, think of exhausting remedies - doing what you could before resorting to the equity court.

2. "Equity Abhors A Forfeiture."

Equity does not like something to be eradicated, forfeit, totally lost. That penalty, even if agreed, can be too harsh in some cases. In 2008, Forfeiture had been agreed by the states if they held primaries that violated party rules. The DNC, however, in equity compromised and did not require a forfeiture.  DNC Equity score card 2 points.

3. "Equity acts Specifically".

Equity fashions a result that meets the need, not applying from some table or schedule. Equitable remedies are flexible - Here, the DNC decided the specific need here was to get some seating accomplished, and chose to seat each state's delegates, but with the consequence (intentionally violating the party rules) of half a vote each. This is reasonably tailor-made as circumstances reasonably require, since no consequence would likely lead other states in future to flaunt rules.  DNC Equity score card 2 points.

4. "Equity Aids The Vigilant, Not Those Who Slumber On Their Rights."

Laches. The State committees are guilty of "laches" - they had time to protest rules before they were adopted, and agreed to the rules instead, and then delayed objecting until they saw that they were going to be hurt by the rule's implementation.

This delay in objecting to the rules was also prejudicial to the DNC and the process. DNC now had to cope with the efforts to undo what had been done and by agreement.  If either state had an objection to the rules, the time for that objection was early in 2007.  Clinton Side Equity scorecard  -2 (minus two)

5. "Equity regards substance rather than form"

DNC did not act on technicalities. They could have been strictly legal, if they chose, and the states in violation would be forfeit. But applying a milder consequence in order to involve all the states in the decisionmaking was seen as a higher goal, and appropriate,  and giving half a vote gives sufficient recognition of voter votes.

Counting all the votes full freight instead of half strength to the violators, when the entire proceeding was distorted as to who was on the ballot, and there had been promises made by the candidates to follow rules, is not required and would produce other inequities.

Third party issues:  What was the legislator involvement in the rules. Maybe the citizens made a mistake in not controlling their legislators. Vote 'em out? For now, the votes cast will count sufficiently under the circumstances. Voters, contact your legislators.  DNC Equity scorecard 2 points.

6. "Equity Delights To Do Justice And Not By Halves."

Partial justice resolves only part of a situation. In section 5, the award of half-vote strength was not partial justice, it resolved the issue as a full conclusion.  But partial justice that leaves issues open is unacceptable to equity  The goal is not to come back.

Here, the DNC addressed the totality with its decision. It tried to meet all disputants in a midground, so that regardless of each state's situation, they could reasonably see also the other side's position. Would another percentage be more "just"? Or seating all of one state and none of the other?

Justice cannot be that bean-countish. Overcooking the beans just because someone is vaguely unhappy creates glob.
The resolution is fair enough.  Enough. DNC Equity scorecard for trying - 2 points.

7. "Equity Is Equality."

The DNC treated both breaching states in the breaching category the same. Neither was left out. Not all the good result or bad went to one, with none to other, for example.  DNC Equity scorecard 2 points.

 8. "Between Equal Equities The Law Will Prevail."

Both breaching states could have been totally left out, if the technical legalism had been applied. The equity side could have decided to take no further steps at all, and just leave them where they are - with no seats at convention, as the "law" they agreed to, provided. None for either.  Equity cannot be forced to act.

DNC did.  It heard the issues and did better than the law alone. Both sides were reasonably satisfied and move don.  DNC didn't have to do anything further.  DNC Equity scorecard -  2 points.

Principle 9. "Between Equal Equities The First In Order Of Time Shall Prevail."

If arguably there are gripes on both sides (and we have heard no complaint about the rules-setting procedures or the parties agreeing to it), the DNC agreement came first. So, if the balance is roughly equal somehow with the later breachers, still the DNC would prevail as first in time.  DNC Equity scorecard -  2 points.

10. "He Who Seeks Equity Must Do Equity."

Think another term:  Estoppel.   

The person agreed to the matter once, the other side relied to its detriment, not the first person renegs.  The reneger is estopped from now taking another position.

Clinton Side. Skip estoppel.  This is too big an issue. Too much is at stake.  Run with it. Cheat and see if the umpire will call it.

Could they have sought equity to act favorably on their behalf in forcing seating, where they were the ones who breached the agreement for procedures. They themselves had not acted equitably, so can they ask the court now to give it to them?

Their argument was that, at the time they agreed, they did not think the issue mattered.  Who could foresee that there would be such a landslide that Florida and Michigan would not be needed? That is insufficient. Would the court look into the Clinton side's keeping her name on a ballot where the votes were agreed not to count? Is that the legal principle of having cake and eating it too - and some asked, was she thinking at the time of agreement of reneging on the agreement if it turned out to be a bad choice?  Clinton Side Equity scorecard --  -2 (minus two)

Similar Principle:
11. "He Who Comes Into Equity Must Come With Clean Hands."

The Clinton side did not, apparently, come in with clean hands. The rules were clear, agreed fair by the states involved. There was no flaw in the nature of the DNC rules-setting, so far as we have heard; all participated and agreed. Noone's conscience can fairly be shocked at the rules being implemented, even in this soft way. All out in the open.

Dog In The Manger. Can somebody take on the role of dog in the manger, see Aesop's Fables: The Dog in the Manger and then seek equity regardless?
  • Next Blue Book Question: What if the person threatens to act like the dog in the manger in order to pressure others into the result he or she wants. Is that fair? Equitable? Legal? Does it matter? There is no law against the dog in Aesop taking over the manger. So, what does the ox do?

Clinton Side Equity scorecard -   -2 (minus 2)

Your Honor, the jury has reached a decision.

Mircea the Old, Romania

DNC Equity Scorecard:    14 points.

Clinton Equity Scorecard - Minus 6 points

Now ask, who was acting like a Monstermonster in that case?  No, don't.

FN 1

Facts, roughly.

The Democratic National Committee set rules governing primaries, when they would be held, other procedures. As enforcement, the votes from states violating the date rules would not be counted at the convention. All states had input, and agreed. A contract. Lawful, bargained, binding.

Then two states violated the rules and their legislatures set unauthorized premature primary dates. Candidate Clinton then kept her name on the ballot in both states.

Candidate Obama kept his name on the Florida ballot, but people were urged to vote Uncommitted, because of the agreement that the votes would not count anyway. Somebody please clarify this issue? Candidate Obama did not have his name on the Michigan ballot at all.

Candidate Clinton got more votes in each state, than Candidate Obama.

But nobody counted the Uncommitteds, or knows what those voters meant - for Obama, or truly uncommitted.

Now, Candidate Clinton needs every one of the votes cast specifically for her to count in order to argue that she has more of the popular vote than Candidate Obama. She didn't think she would need this argument. Now she does. The states decided not to revote or otherwise correct the situation.

DNC ruled it will seat Florida and Michigan at the Democratic Convention with half votes for each delegate. Did the DNC properly set reasonable rules with participation of the various parties, then their agreement, then implement those rules as they had been promulgated? Did they show appropriate flexibility in adjusting remedies.

Issues of media coverage: See FodderSight: News sources -Both sides could claim gripes, in differing areas, probably. This is not part of a DNC "seating"action, but should be addressed in actions against the media as any party vs. media elects, if they can think of grounds.

Media, in providing entertainment instead of neutral factual coverage, may be an issue, but it does not apply not to the issue of whether Florida and Michigan should enter into a consensus by which they agree that matters may proceed as now laid out by the DNC. For Consensus: see Joy of Equivocating, Consensus.


FN 2. Concepts. Law and Equity.

Civil law.

  • State's interest: restore injured party, insofar as money can do that. Breach of Contracts, property matters, intentional infliction of emotional distress (!) with assumption of the risk, and tortfeasors on a frolic of their own.
  • Means: Jury or judge hears evidence, finds as to elements of an offense; may be unintentional (negligent)
  • Standard: preponderance of the evidence
  • Remedy: money damages, but also restoring things, making the defendant do things, "equitable remedies." How to measure damages? If money won't work - back to equity? - "specific performance" remedies - make the injuring party do things; return property; etc.
"Estoppel" - some circumstances where someone is bound by a prior statement on which others relied, is equitable but can also be a "law" matter, as when the prior statement was legally "found" earlier - see ://

Criminal law.

  • State's interest: punish a perpetrator for breaking a law; deter others. Injured party here is left to go to civil court.
  • Means: Jury or judge finds as to elements of an offense, including criminal intent (guilty mind idea)
  • Standard: beyond a reasonable doubt
  • Remedy: incarceration; or deportation; or in some cases, a fine, or community service, etc.
Equity. Aspect of a law case that mitigates otherwise harsh results; or makes an injured party whole again. Somebody's reasons, some mistakes, motivation, circumstances can mitigate a result, for example. Some cases are heard in equity.

  • State's interest: make the injured party whole in ways that money cannot
  • Method: Judge hears equity cases, and does the actual sentencing in criminal matters, with discretion in equity that may be broad or narrowed (3-strikes laws)
  • Most states now do not have separate equity cases, some do (court of chancery, example)
  • Remedy: Equity slants the consequence in some cases, where money is inadequate as a remedy. But can you really make the opera singer go back and sing? Pitfalls.
Using force to obtain a result is inequitable.

When in combat, does equity apply

However, in our historical tradition, doing merely unfair or bullying or nasty things is not against the law. You can delay. You can bully to a broad degree, but short of putting someone in fear of imminent harm by poker.

You can do bad acts, hide things, fabricate so long as you are not under oath, etc., and probably won't get much attention unless it rises to the degree of shocking somebody's conscience if you are caught. Move the business along. Rule of tough. That's life. Lawyers are empowered to represent you with all zeal, and are not obligated to ensure that the court has all the information it needs. Lawyers do not need to do an independent analysis of fairness. Whatever wins, works, within some limits. Hear it for competition. Ins and outs and state variations. Clients can choose to define for their lawyers how much nasty to do. But adrenalin gets going. Choose lawyers carefully, as with any other major purchase.

Administrative hearings (not the jury system) are used for rules and regulations of administrative agencies, or governmental overseers, such as tax regulations.

Homework: Apply the equitable principles, not just the "legal" because nothing is cut and dried where equity comes in, to these areas. Delays in enforcement, clean hands, all the rest. Who stays, who goes, who is invaded, who marries, family issues, how do you do it (whatever remedy you think is equitable)

  • undocumented immigration issues;
  • same-sex marriage;
  • foreign policy;
  • the mortgage crisis (who was sold what.

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