Well, maybe it doesn’t, but it should. My colleague Sam Bray, who’s a remedies scholar, passed this along to me, and I thought it very much worth posting:
As every lawyer and law student knows, the old separation between courts of law and courts of equity has been abolished almost everywhere. Some of the historical distinctions between law and equity still matter, though, especially in the law of remedies. But many people have forgotten the history.
Just the other day, in an oral argument at the Supreme Court, a distinguished appellate lawyer and former Solicitor General, Seth Waxman, said that the declaratory judgment was “a claim for an equitable remedy.” (The case was Medtronic, Inc. v. Boston Scientific Corp., and it involves the burden of proof in declaratory judgment actions.) On the other side in the same case, one of the amicus briefs urged the Court to decide the burden of proof in declaratory judgment actions on the basis of “equitable principles.”
But the declaratory judgment isn’t an equitable remedy!
There are two reasons for this. One is the history of equity. Courts of equity were not traditionally able to give declaratory judgments, except against the Crown. On this point, see R.P. Meagher, W.M.C. Gummow, and J.R.F. Lehane, Equity: Doctrines and Remedies 451-463 (3d ed. 1992). And a hallmark of equitable remedies centuries ago was that they operated in personam, while the declaratory judgment has always been vigorously in rem.
Another reason the declaratory judgment isn’t an equitable remedy is present doctrine. There are a host of special rules that simultaneously constrain and empower equitable remedies. These rules include the irreparable injury rule, equitable ripeness, equitable defenses (e.g., unclean hands and laches), opportunities to revisit and reopen the remedy (e.g., modification and dissolution of an injunction), and enforcement mechanisms such as contempt. These special rules apply to — and ordinarily only apply to — equitable remedies. They do not apply to the declaratory judgment.
True, there are similarities between the declaratory judgment and equitable remedies. For example, courts have a lot of discretion about both of them. And it’s also true that some source can be found for just about every possible view of the relationship of the declaratory judgment to the distinction between legal and equitable remedies — it has been called legal, equitable, both, and neither. (Doug Laycock collects sources displaying all of these opinions in notes on page 29 of his book The Death of the Irreparable Injury Rule.)
But as a historical matter, and as a matter of present doctrine, it is not accurate to describe the declaratory judgment as an equitable remedy. Maybe it would be best not to describe the declaratory judgment as being either legal or equitable. (It could be called a statutory remedy.) But if it has to be one or the other, it’s legal.