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Equitable defenses were given up for dead after eBay v. MercExchange . But they have been resurrected. The Supreme Court is raising the dead in recent decisions. It is integrating these judge-made doctrines into federal law despite their omission from the language of the legislation. The fusion of equitable defenses into federal statutes is important because it allows judges discretion to vary statutory outcomes on a case-by-case basis. As a result, an assortment of indeterminate defenses may stand in the way of remedying statutory violations. The Supreme Court’s approach to equity exerts a decisive influence on legislative developments. There is considerable controversy surrounding the judicial use of equitable principles to deny statutory relief. Of equal concern is that courts engage in interest balancing or policy-making that may appear inconsistent with the federal judicial role. Also questionable is whether these elusive concepts can be adequately contained and comprehensible. Scholars have trained a precise lens on the issues of judicial authority and institutional competence involving statutory remedies. A corollary concern—one so intuitive we lose sight of it—is equitable defenses. The Court has yet to account for the recognition of equitable defenses that forfeit congressionally-created causes of action. This Article begins to outline an approach to the interaction between written statutes and unwritten equitable defenses. Concentrating on Supreme Court cases, it examines the decisional law of eight defenses across almost as many statutory subjects over the last two centuries. The Article exposes an equity-protective principle of interpretation that favors these ancient doctrines in modern Supreme Court practice. It also identifies possible bases for this assumption. It additionally responds to potential objections to this default rule that approves equitable defenses in legislation that does not directly provide for them. Taken as a whole, the Article explains and defends the recognition of equitable defenses in statutory law.

Statutory Interpretation, Judicial Discretion, and Equitable Defenses