A Profusion of Chancery Reform

The refrain that law and equity cannot peaceably cohabit the same court is familiar and persistent. In his 1790 treatise on contracts, Joseph Powell protested that blending law and equity was “subversive of first principles.” He claimed, “That a right in itself purely legal cannot be the proper subject of discussion in a jurisdiction purely equitable, and that a right purely equitable, cannot be the proper subject of a purely legal jurisdiction, are axioms that cannot be denied,” adding for good measure: “It is a proposition as self-evident as that black is not red, or white black.” Almost two centuries later, in a provocative 1974 essay called The Death of Contract , Grant Gilmore asserted that the legal doctrine of consideration in contract law and the equitable doctrine of promissory estoppel were like “matter and anti-matter,” and “The one thing that is clear is that these two contradictory propositions cannot live comfortably together: in the end one must swallow the other up.”

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