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Publication Date

January 2003


This essay criticizes the U.S. Supreme Court’s re-conceptualization of equitable restitution in the case of Great-West Life & Annuity Insurance Co. v. Knudson, 534 U.S. 204 (2002). In Great-West, a divided Court in an opinion by Justice Scalia held that “equitable relief” authorized by the Employee Retirement Income Security Act of 1974 (ERISA) does not include claims for specific performance or restitution seeking money for breach of contract. Instead, the Court held that with respect to restitution, the term “equitable relief” includes only those restitutionary remedies which were historically available in courts of equity.

This Article levels two criticisms at the Court’s holding. The primary critique is that the Supreme Court distorted history and equity to reach its result on restitution. Historically, equitable restitution was not restricted to three types of formalistic claims seeking only the return of plaintiff’s specific funds. To the contrary, equity was a flexible legal alternative that issued a variety of monetary remedies in order to address the failure of the hyper-formalist common law courts to redress wrongs. Moreover, despite Justice Scalia’s claim that the Court can easily distinguish between law and equity, it is not a simple task to discern historical rules of equity. The historic development of restitution resulted in significant overlap between equitable and legal restitution, and the historical nuances have been long forgotten. Justice Scalia’s return to the past in defining equitable relief resurrects the outdated distinctions between law and equity and makes them even more significant today. The essay suggests that the dearth of scholarship on historical equity creates a dangerous opportunity for courts, like the Supreme Court in Great-West Life, to issue decisions unguided by accurate knowledge, yet insulated from knowing challenge.

The Article’s second criticism of Great-West Life is that the Court improperly interpreted modern remedial statutory language by historical reference. It suggests that statutory language distinguishing legal and equitable remedies should instead be interpreted by the purpose of the remedy sought. Remedies generally are classified according to their purpose to compensate, punish, disgorge an unjust benefit, or prevent future harm. A purpose test rather than a historical inquiry for defining “equitable relief” more easily delineates the available remedies and avoids the overly formalistic approach taken thus far by the Supreme Court.

Publication Title

Loyola Los Angeles Law Review

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