'Cardozo’s Foot' : The Chancellor’s Conscience and Constructive Trusts

More than 350 years ago, the English legal scholar John Selden complained that the chancery’s jurisdiction in equity depends on a variable standard that might as well be based on the length of the “Chancellor’s foot.” The “Chancellor’s foot” has since become proverbial shorthand for the argument that equity is an unjustified and unfortunate interference in the regular course of the rule of law. In today’s legal environment, both in form and in practice law and equity have become largely indistinguishable and yet find some special cause for concern, or at least interest, in the workings of conscience in what we still label equitable doctrines and decisions. Even with the considerable infusion of equitable considerations into the substance of much common law doctrine, the formulas of equity are more likely to incorporate overt calls for the exercise of discretion and the application of the decisionmaker’s moral intuitions. This article proposes to examine this issue by focusing on a particular doctrine of equity, the constructive trust, and on a seminal figure in the development of the modern U.S. understanding of constructive trusts, Benjamin Cardozo. Cardozo played a demonstrably central role in the evolution of the constructive trust in the United States from a substantive legal relationship to an independent judicial reedy, an evolution that distanced modern U.S. doctrine from its historical roots as well as from what seems still to be the predominant view in England. That evolution also greatly emphasized the importance of conscience in decisions involving constructive trusts, a development for which Cardozo — or at least Cardozo’s opinions — is largely responsible