Legal Writing Ideas: The Equity Case-Theme Formulation

Legal Writing

The concept of equity is a familiar concept in legal theory, education, and practice. It conjures up ideas of fairness, equality, or maybe dread, if it reminds you of your 1L contracts course where the concept carries its own distinct set of remedies. But what many people don’t know is that equity finds its origin in one of the most famous philosophers in the Western World: Aristotle. He originally developed the concept for situations where the law, because of its overbearing generality, was not well fitted for present circumstances. Thus, it could be used to rectify the law in a way the enacting legislative body would have had they been aware of the circumstances. As equity jurisprudence progressed in England, it continuously gave the judge an opportunity to do individual justice when the law could not or had not. This led one English Jurist to proclaim: “in some cases it is necessary to leave the words of the law, and to follow what reason and justice requireth . . . that is to say, to temper and mitigate the rigor of the law.”

However, over time, equity simple became its own body of law (often with separate courts) charged with adjudicating particularized subjects and remedies.” This, characterized by Fredrick Schauer in his book Thinking Like a Lawyer, as the “de-equitization of equity”, disempowered equity of its free-standing ability to right wrongs and dole out justice when the law seemed unfair. And with the eventual merging of the equity courts in the United States with regular courts of law, the concept became a far cry from what Aristotle had envisioned. It was simply another legal concept constricted by doctrine, legal rules, and precedent.

Still, Schauer explains that “the hold of the idea of equity has by no means been lost,” as it still serves as a subtle reminder of the ability judges have to act according to their conscience. Indeed, Bryan Garner and Antonin Scalia make this point explicit in their terrific book, Making Your Case: The Art of Persuading Judges, and it is to their recommendation that I now turn.

In essence, Garner and Scalia advise that when you must rely on fairness to modify the strict application of the law, you should pinpoint some jurisprudential maxim that supports your position. These maxims, venerable propositions sounding in fairness, justice, and reason, are mostly derived from equity practice, and still serve a persuasive purpose according to the duo. They include a couple examples in the text:

  • “No one can take advantage of his own wrong”;
  • “Acquiescence in error takes away the right of objecting to it”; and
  • “He who takes the benefit must bear the burden.”

Some states, including California, have even codified these maxims so as to provide explicit statutory support for your position, and “you can almost always find one to support a defensible position,” the authors write.

I would take the utility of these maxims a step further; that is, beyond using them to support a single principle, inference, or conclusion. I believe it would be worthwhile to ground the entire theme (or at least a theme) of your case in one of these equitable maxims.

Case themes are exceedingly crucial in the litigation context, as they serve as points of emphasis and reinforcement with respect to important parts of the case. They permit counsel to construct a compelling story of what the evidence in the case shows, and help establish why the other side is responsible for what happened and why your client is not. I think various maxims of equity scattered across the legal realm are especially apt for serving as case themes because of their simplicity and common-sense appeal; who wouldn’t want to find against a person with unclean hands who is now attempting to receive compensation?

So, go out and search the now defunct realm of equity for these maxims—synonymous with the rule of law, justice, and fairness—and use them as a starting point for a case theme, theory of the case, or just a proposition you are asserting. It will hopefully shape your thinking and reasoning in a way that furthers justice and fairness, as well as give the judge a more conscientious reason to rule in your favor.

For another post about legal writing check out my post here: Point Made


Name That Product: Almond Milk or ???

Almond Milk
Almond Milk

The Natural vs. Natural Flavors

Food labeling unquestionably influences our purchasing decisions. Whether the persuasion is due to descriptive labels, such as organic and natural, or something more substantive, e.g., milk, labeling has a substantial impact on consumer spending.

Recently, the use of the label “milk” is causing a stir amongst certain special interest groups. The controversy hinges on the ability of plant-based dairy substitute manufacturers (almond milk, soy cheese, coconut yogurt) to label their products as milk, cheese, and yogurt—as opposed to something more abstract and possibly more apt (Liquid-Nut-Derivative, perhaps?). This labeling practice has been permitted for years, but there may be a change on the horizon with a proposed legislative Bill.

In January, 2017, Congress introduced the DAIRY PRIDE ACT (Defending Against Imitations and Replacements of Yogurt, milk, and cheese to Promote Regular Intake of Dairy Everyday Act).  This bill would amend the Federal Food, Drug, and Cosmetic Act (FDCA) to consider any food mislabeled “if it uses a market name for a dairy product . . . and the food does not meet the criterion for being a dairy product.”  The criterion for a dairy product is set forth in federal regulation 21 CFR 131.110 as the lacteal secretion, practically free from colustrum, obtained by the complete milking of one or more healthy cows.”  I’m not a food chemist, but I’m pretty sure that almonds, macadamias, and soy do not come from the lacteal secretion of a cow.  Thus, if this Bill is passed, any product labeled as almond milk would be considered misbranded, and prompt food manufacturers to drop the label lest they subject themselves to legal penalties.  And this enactment will fulfill its purpose in preventing plant-based dairy substitute manufactures from profiting off the “milk name.”

But whether this labeling change will actually make a sizable difference in consumer spending is unknown.  If I had to speculate, I would predict that a less informed consumer who relies less on the substance of the food and more on the labeling authority might be swayed, as the beverage will now carry a foreign label and not the all-so-familiar “milk” title.  However, I don’t believe the informed consumer will be deterred, as the value of Almond Milk comes from it being a dairy substitute, and its mere designation as something non-milk won’t change that.

In any event, special interest groups have fired back in response to this Bill, encouraging people to voice their opposition to DAIRY PRIDE. These groups make a normative argument: labeling these products as “milk” is a long-standing practice that has achieved a vital place in our society—as the government has incorporated the term soymilk, for example, into its regulations and nutritional assistance programs—and effecting a substantial labeling overhaul would be unnecessary.  There has also recent been litigation surrounding this issue, with one class-action Plaintiff asserting that the labeling misleads the consumer into believing the plant-based milk is nutritionally equivalent or better than cow’s milk.

This controversy ultimately warrants a further inquiry into the similarities between plant-based milk and regular milk, and whether plant-based milk can in good faith be labeled as milk in the first place. Many of these “milks” have caught fire in the past for including various emulsifiers, natural flavors (not even close to what they seem), thickening agents, and other food-processing aids that are harmful.  For example, many almond milks and other plant-based substitutes contain carageenan, which can harm our gut-lining as well as trigger an inflammatory immune response similar to that your body has when invaded by pathogens.[1]   The utility of carageenan and similar chemical constituents comes from its food-thickening character, which allows us to feel like we aren’t just drinking almond infused with water. Unforuntately, this is exactly what we’re doing when we consume almond milk, which brings me to my next point.

One source estimates that an entire carton or jug of almond milk contains roughly 39 cents worth of almonds.  If this estimate is correct, consumers are paying $3.99 or more for filtered water, additives and preservatives, like carageenan, with a couple of almonds spliced in for good measure.  There is also the broader ecological concern with consuming almond milk when it’s estimated that a mere 16 almonds requires 15.3 gallons of water.

Now, environmental issues aside, I personally don’t have an issue with this apparent rip-off.  As long as I avoid the brands with carageenan, I’m happy paying $3.99 for some watered down almond-liquid, as I believe it’s a better alternative to dairy or other beverages I would make my smoothies with.  But should a processed beverage that is essentially preservative-infused water be characterized as “milk”?  This question may require a broader inquiry into our society’s conception of milk so that our expectations aren’t being undermined, but a common-sense approach would answer this question in the negative, I think.  Milk has a long-standing role in our society and has been considered a nutritional pillar in the household.  Could labeling a product that is categorically dissimilar to this dietary staple mislead consumers into believing the health benefits are similar ?  Could this lead to additional uncharacteristic labeling efforts by unscrupulous food-manufacturers in today’s day-and-age when there are exceedingly complex advances in food technology?  I think these are important questions that deserve attention when Congress votes on the DAIRY PRIDE ACT.

Additionally, I’m interested in the economical effect a labeling change could have on consumer purchasing and the plant-based alternative industry—currently a $1.4 billion market.  But whether this bill will get passed and, more importantly, whether the FDA will vigorously enforce the amendment is still up in the air.  Until then, enjoy your plant-based milks but keep in mind that our almond cheeses, coconut yogurts, and soy ice creams may carry a very different label in the future.

[1]; (“exposure to carageenan causes inflammation.”)