Decision
From this word "equitable" Justice Scalia made new law by basing the decision on the purported (ahistorical) bifurcation of English Courts into equity courts and law courts where plaintiffs sue for injunctions and money damages respectively.
Professor Langbein asserted that from this incorrect division, Scalia disjoined any possibility of money damages for make whole remedy because he construed Section 502(a)(3) to be limited to a purely equitable remedy. The reason this preemption decision was wrongly decided is that back in the old days in England's courts of equity, it was possible for the court to order money to be paid.
Read more about this topic: Mertens V. Hewitt Associates
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