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REPORTER'S MEMORANDUM ON PROBLEMS . . . THE 1st TENT. DRAFT 1 (1925)

handle is hein.ali/relwtrts0219 and id is 1 raw text is: RESTATEIME4T OF TORTS
Group V: Equitable Remedies
REPORTER'S MEMORANDUM ON PROBLEMS OF RESTATEM,.ENT
NOT TOUCHED UPON IN T11E FIVST TEflTATIVE DRAFT.
In this memorandum I shall make positive statement of cer-
tain ideas which I propose to put Into the Restatement, though the
reason for submIt'n[ to my Advisors at this tLiuo is proclsely
that I do not feol positive about them,  These points are arranged
In the order In which they are thrown up by the Tentative Outline
accompanying the First Draft, not In the order of their Importance
nor in the order of their vulnerability.
I. IMTRODUCTORY NOTE: HISTORY AND ANALYSIS OF INJUNCTIVE
RENEDY. The remedy as we have it today has been shaped (a) chiefly
by a stream of tradition, continuous from the early days of the
English chancery but continuously mod'fied by changing conditions
and by changing attitudes In the loyal profession, and (b) by leg-
islation, notably codes of procedure and the like.
(a) From chancery tradition we derive the idea of discretion-
ary administration of Justice with one eye on the law and the other
eye on conscience.  In the 18th and 19th centuries, our profession
aspired to legal certainty and to gain that end went far in the
direction of squeezing discretion and conscience out of equity. In
the present century there has been a revulsion of thought and we
are witnessing a recrudescence of discretion and conscience. Would
it be desirable to go into influences on professional thought, -
e.g. earlier faith in logic; earlier ideals of government of laws,
not of men; eta.?

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