Who Has Clean Hands?

SMITH BRAIN TRUST – Pretending to be Scandinavian is not a crime. But Frusen Glädjé ice cream tested the limits of the law in the 1980s with its Swedish-sounding name and implied connections to the region — despite every scoop coming from Utica, N.Y. The marketing ploy especially irked Häagen-Dazs, a New Jersey-based ice cream company that also pretended to be Scandinavian. 

Häagen-Dazs sued its upstart rival in the Southern District of New York for deceptive trade practices. But the case fell apart on the grounds of “unclean hands,” an allowable defense used to restore equity in cases where the plaintiff may lack a sense of irony.

T. Leigh Anenson, a business law professor at the University of Maryland’s Robert H. Smith School of Business, covers the ice cream feud and similar cases in her 2018 book, Judging Equity: The Fusion of Unclean Hands in U.S. Law. She also lays out the origins and applications of the unclean hands doctrine in a 2018 article featured in the University of California-Davis Law Review.

“Litigants must come with clean hands,” Anenson writes. “In Häagen-Dazs v. Frusen Glädjé, the plaintiff was barred from obtaining an injunction against the defendant’s false designation of its ice cream as Swedish where the plaintiff’s own labeling falsely suggested that its ice cream was from Scandinavia.”

Anenson, a former business litigator and associate director of Maryland’s Center for the Study of Business Ethics, Regulation, and Crime, says the unclean hands doctrine serves as a safety valve in the judicial system. “It protects the sanctity of the court,” she says.

The challenge of ensuring equity starts with the legislative process. Lawmakers must write statutes in advance, before specific circumstance of each case are known. So their statutes must be generalized.

Equity gives judges discretion to set aside the legal requirements and apply moral principles in cases where strict application of the law might not deliver a fair resolution. “Equity is fuzzy around the edges,” Anenson says. “It is highly contextualized.”

The leeway can be good or bad. “The fear is that judges can too easily aggrandize themselves at the expense of the political branches,” Anenson says. “The legal community is also increasingly suspicious of equitable decision-making power and skeptical of a judge’s ability to weigh and balance consequences.”

For more than 10 years, Anenson has studied appropriate checks on judge-made law — which is what happens when courts accept an equity defense.

Her research traces the origins of the defense to medieval England, and from there to ancient China and Rome. But her law review article announces the doctrine as something new because U.S. academics have largely ignored it in recent decades.

“For almost a generation, equity has not been earmarked for separate study in the United States,” Anenson says. “Law students are rarely offered a dedicated course in equity. Academics, who no longer teach the subject, rarely write about it.”

Anenson is filling the gap. “Advancing an overarching theory and structure of the defense should better clarify not only when the doctrine should be allowed,” she says, “but also why it may be applied differently in different circumstances.”

Read more: Announcing the ‘Clean Hands’ Doctrine, Vol. 51, U.C. Davis Law Review 1827-90 (2018), by T. Leigh Anenson.

T. Leigh Anenson is a professor of business law at the University of Maryland’s Robert H. Smith School of Business and associate director of the Center for the Study of Business Ethics, Regulation, and Crime (C-BERC) and an affiliate faculty to UMD’s Department of Criminology and Criminal Justice.

Selected accomplishments: Numerous awards, including the two most prestigious international awards given by the Academy of Legal Studies in Business. Several of her articles have been published in the leading business law journals, as well as in journals at top law schools. Her research has been widely cited in academic articles, leading law textbooks, and court opinions. She has held visiting fellowships at prestigious foreign universities, including the University of Cambridge. She is a former editor of the American Business Law Journal and the International Business Law Review. She is past president of the International Section of the ALSB as well as its Pacific Southwest Region. Recipient of the academy’s Early Career Achievement Award.

Research interests: U.S. equity law and the related areas of remedies, private law and jurisprudence. Theoretical foundation for historic equitable defenses in modern litigation. Secondary research stream involves pension law and policy. She is currently concentrating on public pension governance.

About this series: Maryland Smith celebrates Women Leading Research during Women’s History Month. The initiative is organized in partnership with ADVANCE, an initiative to transform the University of Maryland by investing in a culture of inclusive excellence. Other Women's History Month activities include the eighth annual Women Leading Women forum on March 5, 2019.

Other fearless ideas from:  Rajshree Agarwal  |  Ritu Agarwal  |  T. Leigh Anenson  |  Kathryn M. Bartol  |  Christine Beckman  |  Margrét Bjarnadóttir  |  M. Cecilia Bustamante  |  Jessica M. Clark  |  Rellie Derfler-Rozin  |  Waverly Ding  |  Wedad J. Elmaghraby  |  Rosellina Ferraro  |  Rebecca Hann  | Amna Kirmani  |  Hanna Lee  |  Hui Liao  |  Jennifer Carson Marr  |  Wendy W. Moe  |  Courtney Paulson  |  Louiqa Raschid  |  Rebecca Ratner  |  Rachelle Sampson  |  Debra L. Shapiro  |  M. Susan Taylor  |  Niratcha (Grace) Tungtisanont  |  Vijaya Venkataramani  |  Janet Wagner  |  Yajin Wang  | Liu Yang  |  Jie Zhang  |  Lingling Zhang