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Publication Title

Washington University Global Studies Law Review

Abstract

The recent case of Floyd, et al. v. City of New York, et al., raises important questions about the nature and function of judicial equity power. In August 2013, the Honorable Shira Scheindlin ruled that the New York Police Department systematically violated the United States Constitution by engaging in racially discriminatory stop and frisk practices. Accordingly, the court ordered a series of very extensive equitable remedies to address the discriminatory practice, including the appointment of an independent monitor; a specific performance order mandating immediate reforms to stop and frisk practices; a joint remedy and mediation process involving community stakeholders; and an NYPD pilot program implementing the utilization of body-worn cameras by patrol officers. The decision reopened the debate regarding the scope and reach of equity jurisprudence. In the United States, the equity debate has been subject to opposing schools of thought centering on the doctrine of expansive equity and the proper role of remedial power in contemporary legal jurisprudence. When we turn our attention to jurisdictions struggling with similar tensions between the rule of law and the need to remedy systemic inequality, we gain some useful insight into the role of differing epistemological frameworks in creating alternative methods of finding the proper balance. A comparison to the Indian context is particularly useful given the intentionality with which the Supreme Court of India has expanded the equity power to remedy social injustice. The Supreme Court of India has actively expanded its equity jurisprudence to creatively adjudicate and elaborate on fundamental rights. The Supreme Court of India has rejected mechanical rule-bound adjudications, viewing them as a way for judges to insulate themselves from accountability for their decisions and from the social impact of those choices, broadly interpreting equity jurisprudence. A comparative analysis of equity jurisprudence underscores the importance of interpretation in the construction of legal jurisprudence. While the U.S. Supreme Court’s analysis operates largely within a positivist framework, the activism of the Supreme Court of India resonates with feminist legal analysis by prioritizing lived experience over objective abstractions. In other words, the Supreme Court of India frames legal questions in a way that emphasizes the individual and recognizes that judges may use appropriate discretion in crafting equitable remedies for those who face systemic vulnerabilities. Thus, comparative legal analysis offers us pathways to reassess our interpretive priorities.