* Editor-in-Chief, Boston College Environmental Affairs Law Review, 2002–03. I would like to thank Professor Zygmunt Plater, Benjamin Krass, Jo Lown, and Anne Rajotte for all of their suggestions and their patience during the production of this Note.
1 Charles Dickens, Bleak House 21 (Penguin Books 1980) (1853).
2 Tennessee Valley Authority Act of 1933, 16 U.S.C. § 831 (2000).
3 Zygmunt J.B. Plater, In the Wake of the Snail Darter: An Environmental Law Paradigm and its Consequences, 19 U. Mich. J.L. Reform 805, 807–08 (1986).
4 The project required the acquisition of the generational property of hundreds of families. Id. TVA agents reminded those who refused to sell their land of TVA’s statutorily granted eminent domain power. One agent threatened, “We’ve got our own court and our own judge.” William U. Chandler, The Myth of TVA: Conservation and Development in the Tennessee Valley, 1933–1983, at 162 (1984); see 16 U.S.C. § 831q. This condemned acreage included land that would remain unsubmerged, which would be given to the Boeing Corporation to build a modern industrial city, named Timberlake, requiring additional federal funding. See Stephen J. Rechichar & Michael R. Fitzgerald, The Consequences of Administrative Decision: TVA’s Economic Development Mission and Intragovernmental Regulation 42–43 (1983). In early 1975, Boeing withdrew from the Tellico Dam project partly because of the increasingly grim prospects of obtaining this additional federal funding. See id.
5 437 U.S. 153 (1978) [Hill III].
6 There were three major lawsuits and various appeals. Sequoyah v. TVA, 480 F. Supp. 608 (E.D. Tenn. 1979), aff’d, 620 F.2d 1159 (6th Cir. 1980); Hill v. TVA, 419 F. Supp. 753 (E.D. Tenn. 1976) [Hill I], rev’d, 549 F.2d 1064 (6th Cir. 1977), aff’d, 437 U.S. 153 (1978); Envtl. Def. Fund v. TVA, 339 F. Supp. 806 (E.D. Tenn.), aff’d, 468 F.2d 1164 (6th Cir. 1972).
7 See Chandler, supra note 4, at 164; Zygmunt J.B. Plater, Reflected in a River: Agency Accountability and the TVA Tellico Dam Case, 49 Tenn. L. Rev. 747, 756 (1982). The Cherokee had inhabited Georgia until 1838 when soldiers, under the command of General Winfred Scott, concentrated them into prison camps, and then started them on a winter march westward to Indian Territory, or what is now the State of Oklahoma. Dee Brown, Bury My Heart at Wounded Knee: An Indian History of the American West 7 (1970). This march, known as the “Trail of Tears,” claimed a quarter of the Cherokee’s lives by cold, starvation, or disease. Id. A few hundred had escaped the march and sought refuge in the Smoky Mountains. Id.
8 See Plater, supra note 7, at 756 & n.27.
9 Envtl. Def. Fund, 339 F. Supp. at 812.
10 See Rechichar & Fitzgerald, supra note 4, at 39.
11 Id. Ironically, Dr. Etnier was working under contract with the TVA at the time to study the environmental impacts that the Tellico Dam would have on the river in accordance with TVA’s NEPA obligations. Chandler, supra note 4, at 163.
12 See Rechichar & Fitzgerald, supra note 4, at 39.
13 Endangered Species Act of 1973, 16 U.S.C. § 1536(a)(2) (2000).
14 See id.; Endangered Species Oversight: Hearing Before the S. Comm. on the Env’t & Public Works, 95th Cong. 877 (1977) (written statement of Hiram G. Hill, Jr., Member, Tenn. Endangered Species Comm.) [hereinafter Oversight Hearings].
15 See Oversight Hearings, supra note 14, at 877 (written statement of Hiram G. Hill, Jr., Member, Tenn. Endangered Species Comm.).
16 See id.
17 Hill I, 419 F. Supp. 753, 756 (E.D. Tenn. 1976), rev’d, 549 F.2d 1064 (6th Cir. 1977), aff’d, 437 U.S. 153 (1978).
18 See 16 U.S.C. §§ 1533, 1536(a)(1); Hill I, 419 F. Supp. at 756; Oversight Hearings, supra note 14, at 877 (written statement of Hiram G. Hill, Jr., Member, Tenn. Endangered Species Comm.).
19 See Hill I, 419 F. Supp. at 756. This listing occurred on November 10, 1975, ten months after the citizens group first urged the Department of the Interior to do so. Id.
20 Id. This designation occurred in April of 1976 to become effective on May 3, 1976. Id.
21 A citizens group, along with Zygmunt Plater, a professor of law at the University of Tennessee, and Hiram Hill, a law student at the University of Tennessee, filed the lawsuit in February of 1976. See id. at 756. Hill had written a term paper on the Endangered Species Act for Plater that “was the genesis of the Tellico Dam snail darter lawsuit.” Plater, supra note 7, at 756 n.28.
22 See Plater, supra note 7, at 768 n.72.
23 See Oversight Hearings, supra note 14, at 877 (written statement of Hiram G. Hill, Jr., Member, Tenn. Endangered Species Comm.).
24 See Plater, supra note 7, at 768.
25 See Hill I, 419 F. Supp. at 756 (quoting 40 Fed. Reg. 47,506 (Nov. 10, 1975)).
26 Id.
27 Id. at 760; Plater, supra note 7, at 768.
28 Hill I, 419 F. Supp. at 760; Plater, supra note 7, at 768.
29 See Plater, supra note 7, at 768.
30 Hill I, 419 F. Supp. at 757.
31 See Oversight Hearings, supra note 14, at 875 (written statement of Hiram G. Hill, Jr., Member, Tenn. Endangered Species Comm.); Plater, supra note 7, at 768.
32 See Plater, supra note 7, at 768 n.72.
33 See Jeffrey S. Kopf, Comment, Steamrolling Section 7(d) of the Endangered Species Act: How Sunk Costs Undermine Environmental Regulation, 23 B.C. Envtl. Aff. L. Rev. 393, 393 (1996); see also Joseph L. Sax, Defending the Environment: A Strategy for Citizen Action 102 (1971).
34 See Sax, supra note 33, at 102.
35 See Oversight Hearings, supra note 14, at 877 (written statement of Hiram G. Hill, Jr., Member, Tenn. Endangered Species Comm.); Sax, supra note 33, at 102. But see TVA v. Hill, 549 F.2d 1064, 1071 (6th Cir. 1977) [Hill II] (stating that “[c]onscientious enforcement of the Act requires that it be taken to its logical extreme”—halting the impoundment of water behind a completed dam), aff’d, 437 U.S. 153 (1978).
36 See Sax, supra note 33, at 102–04; infra Part IV. The district court grappled with this problem, stating, “In excess of $78 million in public funds have been invested in the project, and if it were permanently enjoined, TVA estimates that some $53 million would be lost in nonrecoverable obligations.” Hill I, 419 F. Supp. 753, 759 (E.D. Tenn. 1976), rev’d, 549 F.2d 1064 (6th Cir. 1977), aff’d, 437 U.S. 153 (1978). The Sixth Circuit, on the appeal of this denial and uncomfortable with the position in which it found itself, wrote: “We are . . . asked to balance the survival of a living species against the completion of a public works project which is more than 80% completed and represents a federal investment of almost ninety million dollars.” Hill II, 549 F.2d at 1067. Later, in the same opinion, the circuit court again stressed the awkwardness of its position: “[T]his legal controversy may well enjoy a modicum of notoriety because it appears to pit the survival of an obscure fish against completion of a $100 million reservoir . . . .” Id. at 1069.
37 See Sax, supra note 33, at 102.
38 See id.
39 See id. at 102–03. A related tactic was used in Citizens to Preserve Overton Park v. Volpe. That case concerned the Federal-Aid Highway Act of 1968, 23 U.S.C. § 138, which prohibited any program or project that required the use of publicly owned land from a public park. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 405 (1971). It provided an exception where there was no feasible or prudent alternative, which required the Secretary of Transportation’s approval. Id. The Bureau of Public Roads and the Federal Highway Administrator approved of a plan to have Interstate I-40 go through the center of a park in Memphis, Tennessee. Id. at 406–07. The Act prohibited this, but instead of using a statute as a general guideline for its actions, the agency tailored its policies and actions towards obtaining an exception to a statute. Id. at 407–08. The government agency condemned land and built a highway up to the north and south edges of a public park. Id. This made the other alternatives (those which did not require going through the park) allegedly unfeasible and imprudent due to financial constraints that were created by the agency. Id. at 408–09. This fait accompli tactic was not briefed, but during oral argument the plaintiffs’ counsel noted:
[I]f the Secretary is to be allowed to thwart any review of his decisions by this piecemeal acquisition of right of way right up to the park, then the administration, the effectiveness of this statute is whittled away . . . Because, every time he has a controversial project it would be possible to box himself in, and to box the Court in and to present you with a fait accompli . . . .
Transcript of Oral Argument at 13, Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) (No. 1066). Although the case was reversed and remanded on other grounds, members of the Court were obviously wise to and repulsed by this conscious manufacturing of a statutory exception. During oral arguments, the Court grilled the attorney from the Solicitor General’s Office, inquiring:
And by the time the land was cleared, the only feasible route was through the park? . . . And so that’s the end. . . . So then, in that case, the moving party here has no possibility of redress. . . . When were the contracts, or have the contracts been let? . . . The contract has been let, hasn’t it? . . . This last month. You went ahead very, very rapidly . . . . Is that it? . . . Rather precipitously, if I may use the word. . . . So all we can do now is unring the bell.
Id. at 32–34.
40 Peter Charles Hoffer, The Law’s Conscience: Equitable Constitutionalism in America 20 (1990).
41 Hill II, 549 F.2d at 1074.
42 Hill III, 437 U.S. 153, 195 (1978). The dam was eventually completed after being exempted from all federal laws by way of a rider on the Energy and Appropriations Act of 1980. Chandler, supra note 4, at 165. A large portion of the land surrounding what is now Tellico Reservoir was acquired by Cooper Land Development, Inc. and in 1986 became Tellico Village, a private recreational-retirement community consisting of village housing, two championship golf courses, a yacht club, a country club, and a community center. Cooper Land Dev., Inc., Fact Book: Tellico Village 1–3 (n.d.). Cooper Land Development’s base of operations in Tellico Village is located in Chota Center. See id. at 7. This appears to be a misplaced homage to Chota—”the sacred capital of the Cherokee [I]ndians, their Jerusalem or Mecca”—which is now under the waters of the Tellico Reservoir. Compare id., with Chandler, supra note 4, at 164, and Plater, supra note 3, at 807.
43 In conference, Justice Blackmun noted that in “[t]his . . . fable of the snail darter and the Tellico Dam, common sense would mandate the completion of Tellico Dam.” Justice William Brennan, Conference Notes on TVA v. Hill, 437 U.S. 153 (1978), in The Supreme Court in Conference (1940–1985), at 151 (Del Dickson ed., 2001). Justice Marshall, observing that the statute could only be interpreted as requiring the halting of the dam’s construction, bluntly added, “Congress has the right to be a jackass.” Id.
44 Endangered Species Act of 1973, 16 U.S.C. § 1536(d) (2000).
45 However, the actual results of the implementation of this amendment have been questioned. See generally Kopf, supra note 33 (arguing that despite this “sunk costs” amendment to the ESA, the sunk costs strategy remains a powerful tool).
46 A permanent injunction is distinct from a temporary injunction. The former is the court’s final grant of complete relief after a trial on the merits, while the latter is used to maintain the status quo while the court is in the process of determining the plaintiff’s right to a permanent injunction. Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542 (1987).
47 A court’s equitable jurisdiction can be restricted by a clear and valid legislative command. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 313 (1982).
48 Id. at 311; 1 Thomas Carl Spelling, A Treatise on Injunction and Other Extraordinary Remedies 12–14 (2d ed. 1901).
49 Freeman v. Pitts, 503 U.S. 467, 487 (1992); see Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) (emphasis added). For a further example, note that the Constitution grants “[t]he judicial Power of the United States” to “all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made . . . under their Authority,” but does not afford an equitable remedy power to federal courts. See U.S. Const. art. III, §§ 1, 2.
50 Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946) (“Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court’s jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied.”).
51 Weinberger, 456 U.S. at 313–14.
52 See 2 Joseph Story, Commentaries on Equity Jurisprudence 64 (Arno Press Inc., reprint ed. 1972) (1836); J.M. Kelly, A Short History of Western Legal Theory 1, 39 (1992).
53 Kelly, supra note 52, at 1.
54 See id. at 1–2, 39; T.A. Sinclair, Translator’s Introduction to Aristotle, The Politics 13, 15–17 (T.A. Sinclair trans., Penguin Books 1992).
55 Plato, The Laws 396 (Trevor J. Saunders trans., Penguin Books 1975).
56 Id.
57 Id.
58 Aristotle, Nicomachean Ethics 144–45 (Terence Irwin trans., Hackett Pub. Co. 1985).
59 See Aristotle, The Politics 226–28 (T.A. Sinclair trans., Penguin Books 1992).
60 Id. at 227–28.
61 See id.
62 Kelly, supra note 52, at 29.
63 Thomas Edward Scrutton, Roman Law Influence in Chancery, Church Courts, Admiralty, and Law Merchant, in 1 Select Essays in Anglo-American Legal History 208, 216 (1907) [hereinafter Select Essays]; see J. Inst. 1.2.1, 1.2.2.
64 See J. Inst. 4.15.1; 2 Story, supra note 52, at 158.
65 See Kelly, supra note 52, at 52.
66 Daniel R. Coquillette, The Anglo-American Legal Heritage 6 (1999).
67 See id.; Kelly, supra note 52, at 55.
68 See Kelly, supra note 52, at 54–57; Scrutton, supra note 63, at 217; see also Cicero, On Duties bk. III, ch. 4, § 7, reprinted in Cicero: Selected Works (Michael Grant trans., Penguin Books 1971).
69 Scrutton, supra note 63, at 216; see J. Inst. 1.2.1, 1.2.2. In the preface to the Institutes, a law textbook that Emperor Justinian ordered to accompany the production of his great Digest, the hope is expressed that the emperor will “repel the inequities of men who abuse the laws” by every legal means. J. Inst. 1.1.pr.
70 Cicero, supra note 68, bk. III, ch. 4, § 7.
71 See Dig. 1.1.7.1 (Papinian, Definitions 2) (emphasis added); Scrutton, supra note 63, at 216.
72 Dig. 1.1.8 (Marcian, Institutes 1); see Dig. 1.1.7.1 (Papinian, Definitions 2). Evidence of this prętorian law can be found in the pages of two of the three final authoritative Roman civil law texts, known as the Corpus Juris. Emperor Justinian commissioned the two texts, the Institutes and the Digest, before the fall of the Roman Empire. See J. Inst. 1.1.pr., 1.2.1, 1.2.2; Dig. 1.1.7.1 (Papinian); Coquillette, supra note 66, at 4–5; Peter Stein, The Glossators of the Civil Law, in Francis De Zulueta & Peter Stein, The Teaching of Roman Law in England Around 1200, at xiii, xiv (1990). There were three main texts that were the basis of Roman law: the Institutes, the Digest, and the Codex. Coquillette, supra note 66, at 4–5. The Digest was a collection of all of the most authoritative sections of the previous Roman legal texts. Id. After the Digest was complete, all other Roman legal texts were ordered destroyed to avoid conflicting statements of the law; fragments of one text, the Institutes of Gaius, did escape this fate. Id. at 5. The Institutes was a text for students of the law based on the Digest. Id. The Codex was a compilation of all of the imperial statutes. Id. These three works form the body of Roman law, or the Corpus Juris, and were completed in 533 a.d. Id. at 4–5. Some commentators would include the compilation of Emperor Justinian’s later legislation, the Novels, as part of the Corpus Juris as well. See Stein, supra, at xiii.
73 See Kelly, supra note 52, at 52.
74 See J. Inst. 4.15.pr., 4.15.1; Henry Sumner Maine, Ancient Law 44 (Univ. of Ariz. Press 1986) (1864).
75 J. Inst. 4.15.pr.; see 2 Story, supra note 52, at 158. As with the injunction, the interdicts applied in personam. See Dig. 43.1.1.3 (Ulpian, Edict 67).
76 J. Inst. 4.15.1; 2 Story, supra note 52, at 159–60.
77 J. Inst. 4.15.1; 2 Story, supra note 52, at 160.
78 J. Inst. 4.15.1; 2 Story, supra note 52, at 159–60.
79 J. Inst. 4.15.1; 2 Story, supra note 52, at 159.
80 1 Spelling, supra note 48, at 2–3.
81 4 John Norton Pomeroy, A Treatise on Equity Jurisprudence 937 (1941); see Geo. Tucker Bispham, The Principles of Equity 24–28 (5th ed. 1893).
82 Coquillette, supra note 66, at 37; Peter Stein, Vacarius and the Civil Law in England, in Zulueta & Stein, supra note 72, at xxii.
83 Stein, supra note 82, at xxii.
84 Roman civil law would continue to be the only law taught at Oxford for centuries, until Sir William Blackstone made the common law system part of the curriculum in 1758 when he was appointed as the first Vinerian Chair. Frederick William Maitland, English Law and the Renaissance, in 1 Select Essays, supra note 63, at 168, 198–99; id. at 193 (“The voice . . . pleading that English law was the law that should be taught in English universities was a voice that for centuries cried in the wilderness.”); see 1 William Blackstone, Commentaries *4–*5, *16.
85 Stein, supra note 82, at xxii–xxv.
86 See Scrutton, supra note 63, at 209–12; William Stubbs, The History of the Canon Law in England, in 1 Select Essays, supra note 63, at 248, 260. Glanville, the great treatise on common law procedure, cites Justinian’s Institutes in the preface to the manual. Scrutton, supra note 63, at 209–12. Bracton, the first great treatise dealing with the substantive side of the English common law system, incorporates significant portions of the Corpus Juris. Stubbs, supra, at 260.
87 See 1 Blackstone, supra note 84, at *18–*19; Stubbs, supra note 86, at 258, 262.
88 See 1 Blackstone, supra note 84, at *19–*20.
89 Katherine Gordley, Introduction to Gratian, The Treatise on Laws with the Ordinary Gloss, at iv, x, xviii (Augustine Thompson & James Gordley trans., Catholic Univ. of Am. Press 1993) (1140).
90 Id. at xviii. Echoing the Roman concept of aequitas, Gratian observes that “there are many [enactments] that should be tempered, either for the necessity of the times, or in consideration of age.” Gratian, supra note 89, at 53. The Decretum was the first written work of what came to be known to canonists as the Corpus Juris Canonici. Coquillette, supra note 66, at 184; Gordley, supra note 89, at xvi. Catholic philosophers were also strongly influenced by the Summa Theologica written by Aristotle-influenced St. Thomas Aquinas. Coquillette, supra note 66, at 185. Aquinas, citing canon law sources, Scripture, and Roman texts, observed the need to look to the intent of the legislature when looking at any particular case, in order to avoid a harsh application of a statute. See St. Thomas Aquinas, The Summa Theologica pt. II, pt. 2, question 96, art. 6, reprinted in The Political Ideas of St. Thomas Aquinas 75–77 (Dino Bigongiari ed., 1953).
91 3 Blackstone, supra note 84, at *46; 3 Edward Coke, Institutes *328 n.D; Theodore F.T. Pluncknett, A Concise History of the Common Law 695 (Little, Brown & Co., 5th ed. 1956).
92 Bispham, supra note 81, at 1, 5–6 (5th ed. 1893).
93 Id. at 6.
94 Id.
95 See Scrutton, supra note 63, at 214.
96 3 Blackstone, supra note 84, at *47. Until 1530, only a few non-ecclesiastics had held the position of Lord Chancellor. Scrutton, supra note 63, at 214–15.
97See Christopher St. German, The Replication of a Serjeant at the Laws of England, reprinted in J.A. Guy, Christopher St. German on Chancery and Statute 101 (J.A. Guy ed., Selden Soc’y 1985) (1787); Maine, supra note 74, at 42–43; Scrutton, supra note 63, at 214–15. In the biting criticism of the Sergeant of Law, St. German writes:
Serjaunte. . . . For moste commonly the Chauncellors of England have bene spirituall men, that hath had but superficiall knowlege of the lawes of the realme . . . I may lykyn my lorde Chauncellor, that is not lernyde yn the lawes of the Realme, to hyme that standith yn the vale of White Horse, fer from the horse, and beholdithe the horse; and the horse semythe and apperith to hym a goodly horse, and well proporcionede yn every poyncte. And then, if he cumme nere to the place where the horse is, he can perceive no horse, not nor proporcion of any horse.
St. German, supra, at 101–02.
98 Scrutton, supra note 63, at 215.
99 See 3 Blackstone, supra note 84, at *46; 3 Coke, supra note 91, at *328 n.D; Scrutton, supra note 63, at 214.
100 Bispham, supra note 81, at 11 (5th ed. 1893).
101 Id. (emphasis removed); see Maine, supra note 74, at 42–43.
102 See Maine, supra note 74, at 42–43; Scrutton, supra note 63, at 216.
103 Francis Bacon, Of Judicature (quoting, in italics, Isaiah 40:4), reprinted in Francis Bacon: A Collection of His Works 185 (Sidney Warhaft ed., 1965) (1625).
104 See id. at 6–7; 2 Story, supra note 52, at 54–55.
105 Bispham, supra note 81, at 7 (11th ed. 1931).
106 See e.g., John Selden, Table Talk of John Selden 43 (Sir Frederick Pollock ed., Selden Soc’y 1927) (1689).
107 See Pluncknett, supra note 91, at 279.
108 See id.
109 Christopher St. German, St. German’s Doctor and Student 95, 97 (T.F.T. Pluncknett & J.L. Barton eds., Selden Soc’y 1974) (1530) (Note author’s translation from old English). The full original passage reads:
Equytye is a ryghtwysenes that consideryth all the pertyculer cyrcumstaunces of the dede / the whiche also is temperyd with the swetnes of mercye. And suche an equytye must alway be obseruyd in euery lawe of man / and in euery generall rewle therof / & that knewe he wel that sayd thus. Lawes couet to be rewlyd by equytye . . . . It is not possyble to make any generall rewle of the lawe / but that it shall fayle in some case. And therfore makers of lawes take hede to suche thynges as may often come and not to euery particuler case / for they coulde not though they wolde And therfore to folowe the wordes of the lawe / were in some case both against Iustyce & the common welth: wherefore in some cases it is good and even necessary to leue the wordis of the lawe / & to folowe that reason and Justyce requyreth / & to that intent equytie is ordeyned / that is to say to tempre and myttygate the rygoure of the lawe.
Id.
110 See id. (“[E]xcepcion is secretely vnderstande in euery generall rewle of euery posytyue lawe . . . . [Y]f any lawe were made by man without any suche excepcyon expressyd or implyed it were manyfestly vnresonable / & were not to be sufferyd . . . .”).
111 See St. German, supra note 97, at 10; Selden, supra note 106, at 43. St. German’s Sergeant of Law observed:
[Y]n what uncertayntie shall the kinges subgiettes stande whan they shalbe put from the lawe of the Realme, and be compellede to be ordered by the discrecion and conscience of oon man? And namely, for asmooche as conscience is a thinge of gret uncerteyntie . . . . And so divers men, divers conscience.
Id. at 101. Blackstone would later note that chancellors had bestowed upon themselves unlimited discretion “partly from their ignorance of the law . . . partly from their ambition or lust for power . . . but principally from the narrow and unjust decisions of the courts of law.” 3 Blackstone, supra note 84, at *433.
112 Selden, supra note 106, at 43. The often quoted language of John Selden reads:
Equity is A Roguish thing, for Law wee have a measure know what to trust too. Equity is according to ye conscience of him yt is Chancellor, and as yt is larger or narrower soe is equity Tis all one as if they should make ye Standard for ye measure wee call A foot, to be ye Chancellors foot; what an uncertain measure would this be; One Chancellor ha’s a long foot another A short foot a third an indifferent foot; tis ye same thing in ye Chancellors Conscience.
Id.
113 Maine, supra note 74, at 62–63. It may be noted that the Roman prętor was also expressly guided by the overarching concern for the safety of the state. Id. at 63.
114 See Hoffer, supra note 40, at 10–12.
115 Id. at 17.
116 Id. at 10–11.
117 Id. These doctrines consisted of:
(1) He that will have equity done to him, must do it to the same person; (2) he that hath committed inequity, shall not have equity; (3) equality is equity; (4) it is equity that should make satisfaction, he who receives the benefit; (5) it is equity that should have satisfaction, he who sustained the loss; (6) equity suffers not a right without a remedy; (7) equity relieves against accidents; (8) equity prevents mischief; (9) equity prevents multiplicity of suits; (10) equity regards length of time; (11) equity will not suffer a double satisfaction to be taken; (12) equity suffers not advantage to be taken of a penalty or forfeiture, where compensations can be made; (13) equity regards not the circumstance, but the substance of the act; and (14) where the equity is equal, the law must prevail.
Id. at 10–11 (altered for legibility and internal brackets removed) (quoting Richard Francis, Maxims of Equity, at iii–iv (1726)).
118 See Pluncknett, supra note 91, at 692–94.
119 Lawrence M. Friedman, A History of American Law 22 (1973); Hoffer, supra note 40, at 11; Maine, supra note 74, at 63.
120 1 Henry Ballow, A Treatise of Equity 21–23 (John Fonblanque ed., Luke Hansard & Sons 5th ed. 1820) (1737); see Pluncknett, supra note 91, at 694. Recalling the original need for equity jurisdiction, Ballow writes:
Equity . . . as it stands for the whole of natural justice, is more excellent than any human institution; neither are positive laws . . . any further binding than they are agreeable to the law of God and nature . . . . [A]s the rules of the municipal law are finite, and the subject of it infinite, there will often fall out cases which cannot be determined by them . . . .
1 Ballow, supra, at 8.
121 Pluncknett, supra note 91, at 694.
122 See Veeder, A Century of English Judicature, 1800–1900, in 1 Select Essays, supra note 63, at 730, 735–36.
123 Id. at 736 (quoting Gee v. Pritchard, 36 Eng. Rep. 670, 674 (Ch. 1818)).
124 Hoffer, supra note 40, at 12.
125 3 Blackstone, supra note 84, at *430–33; see Benjamin N. Cardozo, The Growth of the Law 132–37 (1924); 1 Coke, supra note 91, at *29 n.D. Referring to the role of a judge, Justice Cardozo writes:
Unique situations can never have their answers ready made as in the complete letter-writing guides or the manuals of the art of conversation. Justice is not to be taken by storm. She is to be wooed by slow advances. Substitute statute for decision, and you shift the center of authority, but add no quota of inspired wisdom.
Cardozo, supra, at 134.
126 See 3 Blackstone, supra note 84, at *430–32.
127 Id. at *432. These settled doctrines of equity are set forth in Ballow’s treatise as well as the better known Commentaries on Equity Jurisprudence by Joseph Story. See generally 1 Ballow, supra note 120; 2 Ballow, supra note 120; 1 Story, supra note 52; 2 Story, supra note 52.
128 The Federalist No. 83, at 540 n.* (Alexander Hamilton) (Robert Scigliano ed., Mod. Libr. 2000).
129 Compare The Federalist No. 78, supra note 128, at 500 (Alexander Hamilton), with St. German, supra note 97, at 95, 97. Hamilton notes:
It can be of no weight to say that the courts, on the pretence of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature . . . . The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGEMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.
The Federalist No. 83, supra note 128, at 540 n.* (Alexander Hamilton).
130 1 Story, supra note 52, at 72.
131 Id. at 18–19 (quoting Dudley v. Dudley, 24 Eng. Rep. 118, 119 (Ch. 1705)).
132 4 Pomeroy, supra note 81, at 937; see Bispham, supra note 81, at 24–28 (5th ed. 1893).
133 4 Pomeroy, supra note 81, at 937; see Bispham, supra note 81, at 24–28 (5th ed. 1893).
134 Scrutton, supra note 63, at 224.
135 4 Pomeroy, supra note 81, at 937; see Bispham, supra note 81, at 24–28 (5th ed. 1893); 1 Spelling, supra note 48, at 2–3.
136 4 Pomeroy, supra note 81, at 937; see Bispham, supra note 81, at 24–28 (5th ed. 1893). See generally 1 Ballow, supra note 120; 2 Ballow, supra note 120; 1 Story, supra note 52; 2 Story, supra note 52.
137 See Bispham, supra note 81, at 1 (11th ed. 1931).
138 Id. at 2.
139 Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542 (1987); Greenpeace Found. v. Mineta, 122 F. Supp. 2d 1123, 1136 (D. Haw. 2000).
140 Friedman, supra note 119, at 47.
141 Id.
142 Id. at 47–48. The use of the chancery court in New York as more of an English court of exchequer possibly fueled the existing hostility towards the chancery courts and may explain why Alexander Hamilton spent considerable ink in the Federalist papers defending the grant of equitable jurisdiction to the federal courts in the Constitution. See id.; The Federalist No. 78, supra note 128, at 500 (Alexander Hamilton); The Federalist No. 80, supra note 128, at 512–13 (Alexander Hamilton); The Federalist No. 83, supra note 128, at 540 & n.* (Alexander Hamilton); see also U.S. Const. art. III, § 2. The Federalist papers were part of a propaganda campaign used to sway New York public opinion towards ratification of the Constitution. Robert Scigliano, Introduction to The Federalist, supra note 128, at viii–ix.
143 Bispham, supra note 81, at 18–19 (11th ed. 1931).
144 See 1 Story, supra note 52, at 64.
145 Id.
146 See Atlas Life Ins. v. W.I. Southern, Inc., 306 U.S. 563, 568 (1939).
147 U.S. Const. art. III, § 2.
148 The Federalist No. 78, supra note 128, at 500 (Alexander Hamilton); The Federalist No. 80, supra note 128, at 512–13 (Alexander Hamilton); The Federalist No. 83, supra note 128, at 540 (Alexander Hamilton) (“The great and primary use of a court of equity is to give relief in extraordinary cases, which are exceptions to general rules . . . .”); Id. at 540 n.* (“[Equitable principles] are in the main applicable to SPECIAL circumstances, which form exceptions to the general rules.”).
149 See The Federalist No. 80, supra note 128, at 512–13 (Alexander Hamilton); see also 1 Story, supra note 52, 18–19 (quoting Dudley v. Dudley, 24 Eng. Rep. 118, 119 (Ch. 1705)).
150 Atlas Life Ins., 306 U.S. at 568; Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 318 (1999). It is beyond the scope of this Note to address any possible constitutional constraints that may prevent the federal courts from adopting the balancing of the utilities doctrine, which is discussed in Part II infra.
151 See Grupo Mexicano de Desarrollo, 527 U.S. at 318–19.
152 Stainback v. Mo Hock Ke Lok Po, 336 U.S. 368, 383 n.26 (1949); see Fed. R. Civ. P. 1, 2; Hoffer, supra note 40, at 19.
153 See supra Part I.B–.D.
154 See id.
155 See id.
156 See 1 Spelling, supra note 48, at 4 & n.4. This Note assumes the satisfaction of the two requirements.
157 Id. at 4. In the realm of environmental law, the United States Supreme Court has noted that “[e]nvironmental injury, by its nature, . . . is often permanent or at least of long duration, i.e., irreparable.” Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 545 (1987). Although an irreparable environmental harm may be presumed when an environmental statute is violated, courts do use caution so as not to “exercise equitable powers loosely or casually whenever a claim of ‘environmental damage’ is asserted.” Aberdeen & Rockfish R.R. v. Students Challenging Regulatory Agency Procedures (SCRAP), 409 U.S. 1207, 1217 (Burger, Circuit Justice 1972); see Amoco Prod. Co., 480 U.S. at 545.
158 Amoco Prod. Co., 480 U.S. at 531.
159 See supra Part I.C.
160 See Daniel R. Coquillette, Mosses from an Old Manse: Another Look at Some Historic Property Cases About the Environment, 64 Cornell L. Rev. 761, 782–91 (1979).
161 See Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982).
162 See id. (quoting Yakus v. United States, 321 U.S. 414, 440 (1944)); Hill III, 437 U.S. 153, 193 (1978); Hecht Co. v. Bowles, 321 U.S. 321, 321 (1944). To be sure, in doing this delicate balancing where there is a statutory violation on the part of a government agency, no deference is given to an agency’s decision or expertise. See Northwest Coalition for Alternatives to Pesticides v. Lyng, 844 F.2d 588, 590–91 (9th Cir. 1988); Seattle Audubon Soc’y v. Evans, 771 F. Supp. 1081, 1087 (D. Wash. 1991).
163 See Morgan v. Veach, 139 P.2d 976, 980 (Cal. Dist. Ct. App. 1943); Kratze v. Indep. Order of Oddfellows, Garden City Lodge #11, 500 N.W.2d 115, 120 (Mich. 1993); Miller v. City of West Carrollton, 632 N.E.2d 582, 587 (Ohio Ct. App. 1993); Papanikolas Bros. Enters. v. Sugarhouse Shopping Ctr. Assocs., 535 P.2d 1256, 1259 (Utah 1975).
164 Hoffer, supra note 40, at 147.
165 11 Eng. Rep. 1483 (H.L. 1865).
166 See Coquillette, supra note 160, at 783; see also St. Helen’s Smelting Co. v. Tipping, 11 Eng. Rep. 1483, 1486–87 (H.L. 1865). The balancing of the utilities doctrine cannot be found in the leading equity treatises up until this time. See generally 1 Ballow, supra note 120; 2 Ballow, supra note 120; 1 Story, supra note 52; 2 Story, supra note 52. One could argue that the true origin lies in the maxim: “[W]here there is equal Equity, the law must prevail.” See 1 Story, supra note 52, at 75.
167 See Coquillette, supra note 160, at 788.
168 St. Helen’s Smelting, 11 Eng. Rep. at 1483.
169 Id. at 1484.
170 See Coquillette, supra note 160, at 788–89.
171 St. Helen’s Smelting, 11 Eng. Rep. at 1486.
172 See Coquillette, supra note 160, at 789–91.
173 St. Helen’s Smelting, 11 Eng. Rep. at 1486 (emphasis added).
174 Id. at 1487.
175 See Coquillette, supra note 160, at 788. The idea that a balancing of the utilities could be performed at the liability stage of litigation was far from a new concept in England. As early as 1606, in the Ranketts Case, the Court of the King’s Bench noted that it would not find a nuisance where society’s need for an alleged nuisance excused it. Ranketts Case (K.B. 1606), reported in 2 H. Rolle, Rolle’s Abridgment 139 (1668) (“Si home fait Candells deins un Vill, per que il cause un noysom Sent al Inhabitants, uncore ceo nest ascun Nusans, car le needfulness de eux dispensera ove le noisomness del smell.”).
176 Bispham, supra note 81, at 555 (5th ed. 1893).
177 Id. at 555–56.
178 See id.; Coquillette, supra note 160, at 782–91.
179 Hoffer, supra note 40, at 153. In regard to public nuisances, the historical development of equitable principles goes back at least to the reign of Queen Elizabeth. 1 Story, supra note 52, at 201.
180 See 57 Pa. 105, 105 (1868); Hoffer, supra note 40, at 152. Although courts asserted that discretion was the hallmark of equity, up until the 1860s an injunction regularly issued upon the finding of a nuisance. 1 Story, supra note 52, at 152. Some concerns included the concept that “the crown cannot sanction a nuisance” and that to do so on the behalf of private parties would effectuate a right of private eminent domain. See Boomer v. Atl. Cement Co., 257 N.E.2d 870, 876 (N.Y. 1970) (Jasen, J., dissenting); 1 Story, supra note 52, at 202.
181 See Appeal of Richards, 57 Pa. at 105.
182 Id.
183 Id.
184 Id. Possibly the most famous American nuisance case, decided on similar lines, is Boomer v. Atlantic Cement Co., where the air pollution associated with a cement factory was determined to be a nuisance but was allowed to continue provided that the cement company pay existing and estimated permanent damages to neighboring property owners. 257 N.E.2d at 874–75. Here the court balanced the amount of harm to the cement factory owner and the public interest if the injunction issued, to the harm to the plaintiffs if the injunction did not issue—Oscar Boomer, the named plaintiff, was complaining of cement dust damage to his junkyard. Telephone Interview with Oscar Boomer (Sept. 2001). Mr. Boomer stated that the cement factory is still polluting to this day; he believes that the trial court judge did not care for junkyards that much. Id.
185 See United States v. Marine Shale Processors, 81 F.3d 1329, 1358–59 (5th Cir. 1996); United States v. Pozsgai, 999 F.2d 719, 736 (3d Cir. 1993); United States Envtl. Prot. Agency v. Envtl. Waste Control, Inc., 917 F.2d 327, 332 (7th Cir. 1990); Guam Scottish Rite Bodies v. Flores, 486 F.2d 748, 749 (9th Cir. 1990); Gilbert v. Repertory, Inc., 18 N.E.2d 437, 439 (Mass. 1939); Stewart v. Finkelstone, 92 N.E. 37, 38 (Mass. 1910).
186 See Miller v. City of West Carrollton, 632 N.E.2d 582, 587 (Ohio Ct. App. 1993); supra Part I.C.
187 See supra notes 102–114 and accompanying text.
188 Miller, 632 N.E.2d at 587.
189 Id.
190 Evangelical Lutheran Church of the Ascension v. Sahlem, 172 N.E. 455, 457 (N.Y. 1930) (quoting Haberman v. Baker, 28 N.E. 370, 370 (N.Y. 1891) (quoting Lord Chancellor Eldon)).
191 See Hoffer, supra note 40, at 10–11 (quoting Richard Francis, Maxims of Equity iii–iv (1726)).
192 Id.
193 See John Adams, Doctrine of Equity *148, *159; F.W. Maitland, Equity 327–28 (A.H. Chaytor & W.J. Whittaker eds., Cambridge Univ. Press 1936) (1909); 1 Story, supra note 52, at 75.
194 1 Story, supra note 52, at 75; see also Maitland, supra note 193, at 326.
195 See United States v. Marine Shale Processors, 81 F.3d 1329, 1358–59 (5th Cir. 1996); United States v. Pozsgai, 999 F.2d 719, 736 (3d Cir. 1993); United States Envtl. Prot. Agency v. Envtl. Waste Control, Inc., 917 F.2d 327, 332 (7th Cir. 1990); Guam Scottish Rite Bodies v. Flores, 486 F.2d 748, 749 (9th Cir. 1990).
196 See infra Part III.
197 See id. In a powerful statement of the limited powers of equity when facing a violation of a statute, John Selden observes that if it is determined that a defendant has violated a statute, then the judge sitting in equity is robbed of a large degree of discretion and “must doe by him as they have publickly agreed” because both the judge and the defendant have consented to the law. Selden, supra note 106, at 43–44. Selden is actually referring to a criminal statute with a violation resulting in the death penalty. Id.
198 See Marine Shale Processors, 81 F.3d at 1358–59; Pozsgai, 999 F.2d at 736; Envtl. Waste Control, 917 F.2d at 332; Guam Scottish Rite Bodies, 486 F.2d at 749.
199 Papanikolas Bros. Enters. v. Sugarhouse Shopping Ctr. Assocs., 535 P.2d 1256, 1259 (Utah 1975) (emphasis added).
200 See id.; M.T. Van Hecke, Injunctions to Remove or Remodel Structures Erected in Violation of Building Restrictions, 32 Tex. L. Rev. 521, 524 (1954).
201 See Marine Shale Processors, 81 F.3d at 1359; 5 Pomeroy, supra note 81, at 4362–64.
202 See Virginian Ry. Co. v. Sys. Fed’n No. 40, 300 U.S. 515, 550–52 (1937).
203 Papanikolas Bros. Enters., 535 P.2d at 1259; see Gilbert v. Repertory, Inc., 18 N.E.2d 437, 439 (Mass. 1939); Stewart v. Finkelstone, 92 N.E. 37, 38 (Mass. 1910).
204 See, e.g., Curtis Mfg. Co. v. Spencer Wire Co., 89 N.E. 534, 535 (Mass. 1909); Kratze v. Indep. Order of Oddfellows, Garden City Lodge No. 11, 500 N.W.2d 115, 120–21 (Mich. 1993).
205 See, e.g., Gilbert, 18 N.E.2d at 439.
206 See, e.g., N.H. Donuts, Inc. v. Skipitaris, 533 A.2d 351, 357 (N.H. 1987); Papanikolas Bros. Enters., 535 P.2d at 1259.
207 92 N.E. at 34–35.
208 See id.
209 Id. at 38.
210 Id.
211 Id.
212 See Evangelical Lutheran Church of the Ascension v. Sahlem, 172 N.E. 455, 457 (N.Y. 1930).
213 See id.; Trs. of Columbia Coll. v. Thacher, 87 N.Y. 311, 316 (1881); Manners v. Johnson, [1875–76] 1 Ch. D. 673, 680 (1875) (quoting Tipping v. Eckersley, 69 Eng. Rep. 779, 782 (Ch. 1855)).
214 Trs. of Columbia Coll., 87 N.Y. at 316 (quoting Tipping, 69 Eng. Rep. at 782).
215 Van Hecke, supra note 200, at 530.
216 See id.
217 See United States v. Marine Shale Processors, 81 F.3d 1329, 1359 (5th Cir. 1996).
218 See id. (suggesting the application of the innocence of action factor, absent a clear restriction on the court’s jurisdiction from Congress, to violations of the Clean Water Act, the Clean Air Act, and the Resource Conservation and Recovery Act); Hill II, 549 F.2d 1064, 1071 (6th Cir. 1977), aff’d, 437 U.S. 153 (1978) (implicitly applying the exception to the Endangered Species Act). This exception has also been applied to intellectual property cases. Marine Shale Processors, 81 F.3d at 1359 n.16.
219 See generally Morgan v. Veach, 139 P.2d 976 (Cal. Dist. Ct. App. 1943); Cooke v. Taube, 125 N.W.2d 278 (Mich. 1963); McCavic v. DeLuca, 46 N.W.2d 873 (Minn. 1951).
220 McCavic, 46 N.W.2d at 875.
221 Id. at 878.
222 See id. at 874.
223 See id. at 874, 878.
224 Id. at 877.
225 81 F.3d 1329 (5th Cir. 1996).
226 Id. at 1358–60.
227 See generally Hill III, 437 U.S. 153 (1978); Hill II, 549 F.2d 1064, 1074 (6th Cir. 1977), aff’d, 437 U.S. 153 (1978); Hill I, 419 F. Supp. 753 (E.D. Tenn. 1976), rev’d, 549 F.2d 1064 (6th Cir. 1977), aff’d, 437 U.S. 153 (1978).
228 See Seattle Audubon Soc’y v. Evans, 771 F. Supp. 1081, 1096 (D. Wash. 1991).
229 See id.
230 See id. Although beyond the immediate scope of this Note, one could argue that the public interest in having the government obey the law would outweigh any counterbalance. It has been suggested that in cases involving public health and environmental legislation, there is a strong presumption that the public health emphasis creates a countervailing public interest that must be taken into account in the equitable calculus. See Cooper v. Aaron, 358 U.S. 1, 23 (1958) (quoting Mass. Const. pmbl., pt. 1, art. 30) (“a government of laws and not of men”); Hells Canyon Pres. Council v. Jacoby, 9 F. Supp. 2d 1216, 1245 (D. Or. 1998); 2 Henry de Bracton, Bracton on the Laws and Customs of England 33 (George E. Woodbine ed., Samuel E. Thorne trans., Harvard Univ. Press 1968) (1220) (“The king must not be under man but under God and under the law, because law makes the king.”); Gratian, supra note 89, at 29 (“It is just that the prince be restrained by his own ordinances. . . . That princes are bound by their own enactments in itself prohibits them from infringing the ordinances they have imposed on their own subjects.”); John Locke, The Second Treatise of Government §§ 199–201, 202 (“Where-ever law ends, tyranny begins . . . .”), 203–209, reprinted in Two Treatises of Government (1690); Jean-Jacques Rousseau, Discourse on Political Economy pt. I, at 118 (1755) (“[T]he first rule of the public economy is that the administration should be in conformity with the laws.”), reprinted in Jean-Jacques Rousseau: The Basic Political Writings (Donald A. Cress trans. & ed., 1987); Jean-Jacques Rousseau, On the Social Contract bk. III, ch. X, at 193 (1762), reprinted in Jean-Jacques Rousseau: The Basic Political Writings (Donald A. Cress trans. & ed., 1987).
231 See the account of these expenditures in the Introduction.
232 Hill II, 549 F.2d at 1074 (citing W. Va. Div. of Izaak Walton League v. Butz, 522 F.2d 945, 955 (4th Cir. 1975)).
233 See id. at 1074–75; Sax, supra note 33, at 175–92.
234 See Sax, supra note 33, at 175–92.
235 Hill II, 549 F.2d at 1075.
236 Id. at 1074.
237 See id. But see Introduction for a discussion on TVA’s actions and expenditures.
238 See Hill III, 437 U.S. 153, 193–95 (1978).
239 Id.
240 See id.; Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944).
241 See Hill II, 549 F.2d at 1074–75.
242 See Hill III, 437 U.S. at 193–95; Selden, supra note 106, at 43.
243 See Hill III, 437 U.S. at 193–95; Hill II, 549 F.2d at 1074–75.
244 See Hill III, 437 U.S. at 193–95; see also Weinberger v. Romero-Barcelo, 456 U.S. 305, 313 (1982).
245 Hill II, 549 F.2d at 1074.
246 See id.; see also supra Part I.D.2–.3.
247 See 1 Story, supra note 52, at 18–19 (quoting Dudley v. Dudley, 24 Eng. Rep. 118, 119 (Ch. 1705)).
248 See Van Hecke, supra note 200, at 530.
249 See, e.g., Stewart v. Finkelstone, 92 N.E. 37 (Mass. 1910); Van Hecke, supra note 200, at 530 n.96.
250 See, e.g., Curtis Mfg. Co. v. Spencer Wire Co., 89 N.E. 534 (Mass. 1909); Van Hecke, supra note 200, at 530 n.97.
251 See, e.g., McCavic v. DeLuca, 46 N.W.2d 873 (Minn. 1951); Van Hecke, supra note 200, at 530 n.97.
252 See, e.g., Gilbert v. Repertory, Inc., 18 N.E.2d 437 (Mass. 1939); Van Hecke, supra note 200, at 530 n.97.
253 See, e.g., Morgan v. Veach, 139 P.2d 976 (Cal. Dist. Ct. App. 1943); Van Hecke, supra note 200, at 530 n.98.
254 See notes 200–216 and accompanying text.
255 Procedural due process concerns would require more of a municipality or town—at least notice of the proposed regulation—before it could be applied to its inhabitants by holding them responsible for compliance. See U.S. Const. amends. V, XIV, § 1. As a side note, the issue of a building permit is raised so that the difference between states where development rights become vested late (after the issuance of a building permit), early (after the submission of a preliminary plan), or somewhere in between, does not have to be further clarified and its implications dealt with in this Note. See generally Avco Cmty. Developers, Inc. v. S. Coast Reg’l Comm’n, 553 P.2d 546 (Cal. 1976) (the leading case on late vesting development rights); W. Land Equities, Inc. v. City of Logan, 617 P.2d 388 (Utah 1980) (providing a general discussion on early vesting, late vesting, and intermediate “balancing test” vesting development rights); Brad K. Schwartz, Development Agreements: Contracting for Vested Rights, 28 B.C. Envtl. Aff. L. Rev. 719 (2001) (offering a discussion on the principles of vested rights and the need for development agreements in some states).
256 See note 185 and accompanying text.
257 See supra Part I.D.2–.3.
258 See Hill III, 437 U.S. 153, 193 (1978).
259 See id.
260 See notes 248–253 and accompanying text.
261 See Administrative Procedure Act of 1946, 5 U.S.C. § 706(A) (1996).
262 Bispham, supra note 81, at 355 (11th ed. 1931).
263 Id. at 361–62.
264 Id.
265 See Administrative Procedure Act of 1946, 5 U.S.C. § 706(A) (1996); Bispham, supra note 81, at 361–62, 376–77 (11th ed. 1931).
266 See Bispham, supra note 81, at 376–77 (11th ed. 1931).
267 See 5 U.S.C. § 706(A); Hill II, 549 F.2d 1064, 1074 (6th Cir. 1977), aff’d, 437 U.S. 153 (1978); Bispham, supra note 81, at 361–62, 376–77 (11th ed. 1931).