Basically, yes, that’s the suggestion. In Grupo Mexicano, the issue was whether a court could enjoin transfer, encumberance, etc. of property that was not specifically at issue in the underlying lawsuit while the action was still pending. The Court held that such a preliminary injunction was improper because historically a creditor’s bill couldn’t be brought until a debt was reduced to a money judgment. To me Justice Scalia seems to be saying that new equitable remedies are not permitted in federal courts.

Now, maybe Justice Scalia was doing bad legal history (there’s some suggestion in the case that there may have been exceptions to the rule even in the historical practice), and if I’m wrong, then most likely it’s because there’s an old English case I don’t know about that says you can do what NML tried to do here. Bad legal history is an occupational hazard.

I do think Justice Scalia’s approach is wrongheaded. I mean, we received the common law as well as equity from England, but no one says that the old forms of action should rule us from their graves. But his approach is consistent with his whole judicial philosophy. I remember attending a Tanner Lecture he gave when I was an undergraduate in which he said (as I recall) that judges should treat the Constitution as civil law judges treat a code, not as common law judges approach the common law. But at least codes are subject to revision by the legislature. We can’t do anything now to change the historical practice of the English Court of Chancery in 1789. (I suppose someone could propose an amendment to the Constitution that would increase the equity jurisdiction of the federal courts, but what are the chances?)

Why is that? Because you think the power did not exist in England before 1789?

Gilles