1. See, e.g., Johnson v. Yellow Cab Transit Co., 321 U.S. 383, 387 (1944); Dobbs, Dan B., Law of Remedies: Damages, Equity, Restitution 68 (2d ed. 1993)Google Scholar.

2. Black's Law Dictionary 268 (8th ed. 2004).

3. See Precision Instrument Mfg. Co. v. Auto. Maint. Mach. Co., 324 U.S. 806, 815 (1945); N.Y. Football Giants, Inc. v. L.A. Chargers Football Club, Inc., 291 F.2d 471, 473 (5th Cir. 1961); Dobbs, supra note 1, at 68; 27A Am. Jur. 2dEquity §100 (1996).

4. Precision, supra note 3, at 815; Dobbs, supra note 1, at 68.

5. See Deweese v. Reinhard, 165 U.S. 386, 390 (1897) (“if the conduct of the plaintiff be offensive to the dictates of natural justice, then, whatever may be the rights he possesses and whatever use he may make of them in a court of law, he will be held remediless in a court of equity.”); Miller v. Beneficial Mgmt. Corp., 855 F. Supp. 691, 712–713 (D.N.J. 1994) (“Whenever a party who seeks to set the judicial machinery in motion and obtain some equitable remedy has violated conscience or good faith, or other equitable principle in his prior conduct with reference to the subject in issue, the doors of equity will be shut against him [or her] notwithstanding the defendant's conduct has been such that in the absence of the circumstances supporting the maxim, equity might have awarded relief.”) (citations omitted).

6. Garber v. Crews, 324 U.S. 200 (1945); Loughran v. Loughran, 292 U.S. 216, 229 (1934) (J. Brandeis); Keystone Driller Co. v. Gen. Excavator Co., 290 U.S. 240, 245 (1933); Fladeboe v. Am. Isuzu Motors, Inc., 150 Cal. App. 4th 42, 57 (4th Dist. 2007), modified, (Apr. 24, 2007); Mas v. Coca-Cola Co., 163 F.2d 505, 508 (4th Cir. 1947); Hoehm v. Crews, 144 F.2d 665, 672 (10th Cir. 1944); Ohio Oil Co. v. Sharp, 135 F.2d 303, 307 (10th Cir. Okla. 1943); Salzman v. Bachrach, 996 P.2d 1263, 1265 (Colo. 2000); Nakahara v. NS 1991 Am. Trust, 718 A.2d 518, 522 (Del. Ch. 1998); Wright, Charles Alan & Miller, Arthur R., Federal Practice and Procedure §2946 (2d ed. 2010)Google Scholar; 27A Am. Jur., supra note 3, §104; Dobbs, supra note 1, at 68–70. York, Kenneth H., Bauman, John A. & Rendleman, Doug, Cases and Materials on Remedies 209 (5th ed. 1992)Google Scholar.

7. Precision, supra note 3, at 814 (emphasis added).

8. Dobbs, supra note 1, at 70.

9. James M. Fischer, Understanding Remedies 463–464 (2006).

10. Rendleman et al., supra note 6, at 209. On cases of fraudulent transfer, which count for a fair share of the case law on the CHD, Laycock, Douglas, Modern American Remedies: Cases and Materials 966–967 (3rd ed. 2002)Google Scholar, nicely illustrates the two approaches: A, who is being hounded by creditors, colludes with B to defraud A's creditors by transferring A's assets to B, who agrees to transfer the assets back to A later. However, when the time comes for B to return the goods, she refuses. A then petitions the court to compel B to return the assets (under a theory of constructive trust). See, e.g., Beelman v. Beelman, 121 Ill. App. 3d 684, 688 (Ill. App. Ct. 5th Dist. 1984); Mascenic v. Anderson, 53 Ill. App. 3d 971, 972 (Ill. App. Ct. 1st Dist. 1977). Faced with such a scenario, courts have split on the issue of whether A's wrongdoing is sufficiently connected to the subject matter of his petition. Some courts have rejected plaintiffs such as A on the grounds of unclean hands, viewing the fraudulent intention to defraud the plaintiff's creditors as sufficiently related or connected to the remedy for which the plaintiff petitions the court. Other courts, in contrast, have refused to apply the CHD in similar cases on the grounds that the matter at issue in plaintiff A's petition is the transfer arrangement between A and B and not the parties’ fraudulent reasons for the arrangement, finding said reasons not directly related to the legal issues comprising A's petition against B. For examples of case law falling on both sides of this divide, see Fischer, supra note 9, at 463–464 n. 16.

11. Osborne v. Nottley, 206 Ore. App. 201, 201–06 (Or. Ct. App. 2006).

12. Id. at 205.

13. Nakahara v. NS 1991 Am. Trust, 739 A.2d 770 (Del. Ch. 1998).

14. Id. at 792–796.

15. Byron v. Clay, 867 F.2d 1049, 1051 (7th Cir. 1989) (“The doctrine of unclean hands, functionally rather than moralistically conceived, gives recognition to the fact that equitable decrees may have effects on third parties—persons who are not parties to a lawsuit, including taxpayers and members of the law-abiding public—and so should not be entered without consideration of those effects.”) (J. Posner); Gen. Leaseways, Inc. v. Nat'l. Truck Leasing Assoc., 744 F.2d 588, 597 (7th Cir. 1984) (refusing to apply the doctrine of unclean hands in an antitrust case where the application of the doctrine would have defeated the objectives of antitrust law) (J. Posner); Republic Molding Corp. v. B.W. Photo Utilities, 319 F.2d 347, 350 (9th Cir. Cal. 1963); Novadel-Agene Corp. v. Penn, 119 F.2d 764, 766 (5th Cir. 1941); Nakahara, supra note 6, at 523; Sheridan v. Sheridan, 247 N.J. Super. 552 (Ch. Div. 1990); Dobbs, supra note 1, at 67.

16. At least in principle, being an equity doctrine, the CHD is discretionary. See Rendleman, supra note 6, at 209; Dobbs, supra note 1, at 67–7.

17. Laycock, supra note 10, at 964; Dobbs, supra note 1, at 68.

18. Shondel v. McDermott, 775 F.2d 859, 868 (7th Cir. 1985) (J. Posner); Lawrence, William J. III, Note, Application of the Clean Hands Doctrine in Damage Actions, 57 Notre Dame L. Rev. 673, 678–681 (1982)Google Scholar; Chafee, Zechariah Jr., Coming into Equity with Clean Hands, 47 Mich. L. Rev. 1065, 1093 (1949)CrossRefGoogle Scholar.

19. Byron v. Clay, 867 F.2d 1049, 1052 (7th Cir. 1989) (“But with the merger of law and equity, it is difficult to see why equitable defenses should be limited to equitable suits any more; and of course many are not so limited, and perhaps unclean hands should be one of these.”) (citations omitted); Mona v. Mona Elec. Group, Inc. 176 Md. App. 672, 713 (Md. App., 2007) (“Traditionally, the clean hands doctrine only applied in equity. It has been expanded, however, to cases at law, as well.”); Fibreboard Paper Prods. Corp. v. E. Bay Union of Machinists, 227 Cal. App. 2d 675, 696 (Cal. App. 1st Dist. 1964); Fischer, supra note 9, at 471 (“The cases are few, but the movement is toward recognizing unclean hands as an available defense to legal claims.”); Leavell, Robert N., Love, Jean C. & Nelson, Grant S., Equitable Remedies, Restitution and Damages 722 (4th ed. 1986)Google Scholar.

20. See Black, supra note 2, at 806.

21. In pari delicto applies where a plaintiff's culpability regarding a matter at issue is equal to or surpasses the defendant's culpability. See Fischer, supra note 9, at 467–470.

22. In both the CHD and in pari delicto, the iniquity of the plaintiff's conduct as it relates to the subject matter of the litigation plays a significant role in denying the plaintiff access to a remedy. See Fischer, supra note 9. In addition, court integrity is thought to ground both doctrines (see id. at 467), and, similarly to the CHD, considerations of public interest may supersede in pari delicto. See id. at 468; 27A Am. Jur., supra note 3, §103.

23. In contrast to the CHD, which focuses on the plaintiff's wrongdoing, in pari delicto focuses on the comparative degrees of wrongdoing and contributions to the underlying objectionable transaction of all parties. See Fischer, supra note 9; 27A Am. Jur., supra note 3, §103. Moreover, while the CHD is a doctrine of equity, in pari delicto is a doctrine that applies to legal remedies, such as damages. See Laycock, supra note 10, at 964 (2002). Also, the scope of in pari delicto is narrower than that of its equity counterpart because in pari delicto applies where the plaintiff is of substantially equal (or greater) fault in causing the harm as is the defendant (see id.; Fischer, supra note 9, at 467), a condition not found in the CHD. Analytically, putting aside the division between doctrines of law and doctrines of equity, the scope of the CHD is wider than that of in pari delicto: the CHD covers all instances of in pari delicto as well as many others.

24. Ballentine's Law Dictionary 447 (3d ed. 1969).

25. See Prentice, Robert A., Of Tort Reform and Millionaire Muggers: Should an Obscure Equitable Doctrine Be Revived to Dent the Litigation Crisis, 32 San Diego L. Rev., 53, 62–66 (1995)Google Scholar.

26. Fischer, supra note 9, at 471.

27. See, e.g., Olmstead v. U.S., 277 U.S. 438, 485 (U.S. 1928) (the CHD is applied “in order to . . . preserve the judicial process from contamination”) (J. Brandeis, dissenting); Adams v. Manown, 328 Md. 463, 473 (Md. 1992) (“The clean hands doctrine is not applied for the protection of the parties nor as a punishment to the wrongdoer; rather, the doctrine is intended to protect the courts from having to endorse or reward inequitable conduct.”); Mona v. Mona Elec. Group, Inc., 176 Md. App. 672, 714 (Md. Ct. Spec. App. 2007) (“The equitable doctrine of unclean hands is designed to ‘prevent the court from assisting in fraud or other inequitable conduct’ . . . it protects the integrity of the court and the judicial process by denying relief to those persons ‘whose very presence before a court is the result of some fraud or iniquity.’”) (citations omitted); Premier Farm Cred., PCA v. W-Cattle, LLC, 155 P.3d 504, 519 (Colo. App., 2006) (“The [unclean hands doctrine] is intended to protect the integrity of the court, and simply means that equity refuses to lend its aid to a party who has been guilty of unconscionable conduct in the subject matter in litigation.”); Osborne, supra note 11, at 205; Fischer, supra note 9, at 462.

28. Precision, supra note 3, at 814–815.

29. Dobbs, supra note 1, at 68, 880; Rendleman, supra note 6, at 209 (“In applying the unclean hands doctrine, courts act for their own protection, and not as a matter of ‘defense’ to the defendant.”); Fischer, supra note 9 at 462. See, e.g., Ne. Women's Ctr., Inc. v. McMonagle, 868 F.2d 1342, 1354 (3d Cir. Pa. 1989) (“The equitable doctrine of unclean hands is not ‘a matter of defense to the defendant.’ Rather, in applying it ‘courts are concerned primarily with their own integrity,’ and with avoiding becoming ‘the abettor of iniquity.’”) (citations omitted); Nakahara, supra note 6, at 522 (“The unclean hands doctrine is aimed at providing courts of equity with a shield from the potentially entangling misdeeds of the litigants in any given case. The Court invokes the doctrine when faced with a litigant whose acts threaten to tarnish the Court's good name”).

30. The term “normative structure” refers to the norms and values that a legal doctrine constitutes, embodies, or is a legal manifestation of, as well as to the logical relations between those norms and values. On the concept of “normative structure,” see Jules Coleman, Epilogue to Risks and Harms (Spanish Translation), in Risks and Harms 25 (2010) available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1631881. For an example of an analysis of a legal doctrine's normative structure, see Jules Coleman, The Practice of Principle 3–40 (2001) (demonstrating that tort law embodies a norm of corrective justice).

31. See supra note 15.

32. An agent-relative reason is a reason the general form of which includes an essential reference to the person who has it. See Thomas Nagel, The View From Nowhere 152–153 (1986). If integrity-based reasons for actions derive from an agent's basic tenets, beliefs, values, and commitments, then such reasons apply to only those agents who possess those very same basic tenets, beliefs, values, and commitments that give rise to those reasons. As such, assuming that the attributes (such as basic commitments) that integrity turns on are identity markers, integrity-based reasons for action are agent-relative.

33. An agent-neutral reason is a reason the general form of which does not include an essential reference to the person who has it. Id.

34. For this objection I am grateful to one of the referees for Legal Theory.

35. This is a position in line with John Goldberg's and Benjamin Zipursky's view of private law and specifically tort law. See Goldberg, John C.P. & Zipursky, Benjamin C., Torts as Wrongs, 88 Tex. L. Rev. 917, 945–947 (2010)Google Scholar; Zipursky, Benjamin C., Civil Recourse, Not Corrective Justice, 91 Geo. L.J. 695, 733–756 (2003)Google Scholar.

36. Dobbs, supra note 1, at 101–102; Leavell et al., supra note 19, at 6–11.

37. Dobbs, supra note 1, at 48, 60–63.

38. Id. at 102–103.

39. See Shondel, supra note 18, at 868 (“A modern judge, English or American, state or federal, bears very little resemblance to a Becket or a Wolsey or a More, but instead administers a system of rules which bind him whether they have their origin in law or in equity and whether they are enforced by damages or by injunctions. To tell a plaintiff that although his legally protected rights have been invaded and he has no adequate remedy at law [i.e., damages] the judge has decided to withhold equitable relief as a matter of discretion just would not wash today. Even when the plaintiff is asking for the extraordinary remedy of a preliminary injunction—extraordinary because it is often a very costly remedy to the defendant, yet is ordered on the basis of only a summary inquiry into the merits of the plaintiff's suit—the request is evaluated according to definite standards, rather than committed to a free-wheeling ethical discretion.”) (citations omitted) (J. Posner).

40. See id.

41. Id.

42. Id.

43. See Damian Cox, Marguerite La Caze & Michael Levine, Integrity and the Fragile Self (2003), at 17–40; Cox, Damian, La Caze, Marguerite & Levine, Michael, Integrity, in The Stanford Encyclopedia of Philosophy (Zalta, Edward N. ed., 2008)Google Scholar, available at http://plato.stanford.edu/entries/integrity.

44. For a survey of views, see id.

45. Bernard Williams, Persons, Character and Morality, in Moral Luck, 1–19, 20–39 (1981); Bernard Williams, Integrity, in J.J.C Smart & Bernard Williams, Utilitarianism: For and Against, 108–117 (1973).

46. For such an approach to integrity see Babbitt, Susan E., Personal Integrity, Politics, and Moral Imagination, in A Question of Values 107–134 (Brennan, Samantha, Isaacs, Tracy & Milde, Michael eds., 1997)Google Scholar.

47. See Cox et al., Integrity, supra note 43; Frankfurt, Harry, Freedom of the Will and the Concept of a Person, 58 J. Phil. 5–20 (1971)CrossRefGoogle Scholar; Frankfurt, Harry, Identification and Wholeheartedness, in Responsibility, Character, and the Emotions 27–45 (Schoeman, Ferdinand ed., 1987)Google Scholar.

48. Cox, Damian, La Caze, Marguerite, & Levine, Michael, Should We Strive for Integrity?, 33 J. Value Inquiry 519–530 (1999)CrossRefGoogle Scholar.

49. Calhoun, Cheshire, Standing for Something, 92 J. Phil. 235 (1995)CrossRefGoogle Scholar.

50. Id. at 246–252; Williams, Integrity, supra note 45.

51. Of course, which actions challenge one's integrity depends on what one's unconditional normative commitments, principles, values, and beliefs happen to be.

52. Whether integrity is a virtue or in some sense morally good is a matter of contention. See Cox et al., Integrity, supra note 43, at 41–100.

53. See infra Section III.H.

54. This line of reasoning requires accepting that the “abetting” of iniquity presumably involved in a court's assenting to the claims of plaintiffs with unclean hands is indeed deleterious to judges’ integrity, a position challenged by the arguments given in Sections III.B. and III.C.

55. I develop a theory of this notion of ipso facto harm as a matter of constituting attachments elsewhere. See Herstein, Ori J., Historic Injustice, Group Membership and Harm to Individuals: Defending Claims for Historic Justice from the Non-Identity Problem, 25 Harv. BlackLetter L.J. 229 (2009)Google Scholar.

56. Karamatsu v. U.S., 323 U.S. 214 (1944).

57. Herstein, supra note 55, at 243–244.

58. Olmstead, supra note 27, at 484.

59. Id.

60. Dobbs, supra note 1, at 44.

61. Black, supra note 2.

62. On “locutions” and “illocutionary,” see J.L. Austin, How to Do Things with Words (1962).

63. Id. at 100–101.

64. Matthew 7:4 (King James ed.) (Sermon on the Mount).

65. Cohen, G.A., Casting the First Stone: Who Can, and Who Can't, Condemn the Terrorists? 58 Royal Inst. Phil. Supp. 113, 120 (2006)CrossRefGoogle Scholar.

66. Id. at 121. For a related view, see Smilansky, Saul, The Paradox of Moral Complaint, 18 Utilitas 284, 289 (2006)CrossRefGoogle Scholar. Smilansky considers divorcing the wrongness of an action from the issue of whether the victim of the action can or cannot morally complain about that action. The motivation for doing so is to accommodate the intuition that, at least in some cases, a victim of a wrong who is also guilty of a similar wrong may not complain about the wrong she suffers even though we genuinely believe she was treated wrongly. Yet Smilansky questions this approach because he finds it equally if not more troubling to part with the principle that “[i]f it is morally impermissible to treat E in a certain way, then E has grounds for complaint if anyone treats E in that way,” which he calls “the principle of the transfer of complaint.”

67. Cohen, supra note 65, at 123.

68. See supra notes 20–26 and accompanying text.

69. On the tu quoque as a norm of standing, see, e.g., Cohen, supra note 65, at 119–121; Wallace, R. Jay, Hypocrisy, Moral Address, and the Equal Standing of Persons, 38 Phil. & Pub. Aff., 307, 317 (2010)CrossRefGoogle Scholar.

70. Dworkin, Gerald, Morally Speaking, in Reasoning Practically 182, 184–186 (Ullmann-Margalit, Edna ed., 2000)Google Scholar.

71. Thomas M. Scanlon, Moral Dimensions (2008), at 175–176.

72. Id. at 175–179.

73. Smilansky, Saul, Some Thoughts on Terrorism, Moral Complaint, and the Self-Reflexive and Relational Nature of Morality, 34 Philosophia 65, 66 (2006)CrossRefGoogle Scholar.

74. Wallace, supra note 69, at 323–331.

75. For a brief account of more problems with ascribing hypocrisy with overriding moral weight, see Smilansky, Saul, On Practicing What We Preach, 31 Am. Phil. Q. 73, 78–79 (1994)Google Scholar.

76. See, e.g., Johnson, supra note 1, at 403 (“The abstention which equity exercises, as it should here, under the short-hand phrase of the ‘clean hands doctrine’ is not due to any desire to punish a litigant for his uncleanliness”) (J. Frankfurter, dissenting); Keystone Driller Co. v. Gen. Excavator Co., 290 U.S. 240, 245 (1933) (“They apply the maxim, not by way of punishment for extraneous transgressions, but upon considerations that make for the advancement of right and justice.”); W. L.A. Inst. for Cancer Res. v. Mayer, 366 F.2d 220, 227 (9th Cir. 1966); Thompson v. Orcutt, 257 Conn. 301, 310 (Conn. 2001); Adams v. Manown, 328 Md. 463, 482 (Md. 1992); Mona v. Mona Elec. Group, Inc., 176 Md. App. 672, 714 (Md. Ct. Spec. App. 2007); Hicks v. Gilbert, 135 Md. App. 394, 400 (Md. Ct. Spec. App. 2000).

77. See, e.g., Busch v. Baker, 79 Fla. 113, 119 (Fla. 1920).

78. John Gardner, Introduction, in H.L.A. Hart, Punishment and Responsibility xxv (2008).

79. H.L.A. Hart, Punishment and Responsibility (2008), at 4–5.

80. I am unaware of cases recognizing vicarious or collective unclean hands under the CHD. By “collective unclean hands,” I am referring to a concept similar to “collective punishment”: a case wherein the hands of all members of a set are deemed unclean due to the iniquity of just one of them.

81. Johnson, supra note 1.

82. I use “justified primarily” as opposed to “justified solely” because if norms of retribution have some moral weight and are inherent in practices of punishment, then retribution is a norm that necessarily plays some role in the justification of any punitive rule. For more on this line of logic, see infra Section VIII.

83. See supra note 78.

84. In the paradigmatic case of punishment, punishing X is not merely conditioned on X's wrongdoing but is also meted out for that wrongdoing.

85. See R.A. Duff, Punishment, Communication, and Community (2001), at 20–21; Wood, David, Punishment: Nonconsequentialism, 5 Phil. Compass 470, 471 (2010)CrossRefGoogle Scholar; Moore, Michael S., Justifying Retributivism, 27 Isr. L. Rev., 15, 15–21 (1993)CrossRefGoogle Scholar.

86. See, e.g., George Sher, Desert 69–90 (1987); Duff, supra note 85, at 21–23; Davis, Michael, How to Make the Punishment Fit the Crime, 93 Ethics 726 (1983)CrossRefGoogle Scholar; Finnis, John, The Restoration of Retribution, 32 Analysis 131 (1972)CrossRefGoogle Scholar.

87. Anthony Duff, Trials and Punishment (1986), at 233–267; Duff, supra note 85, at 27–30; Hampton, Jean, An Expressive Theory of Retribution, in Retribution and Its Critiques 1–27 (Cragg, Wesley ed., 1992)Google Scholar. For a recently developed justification of legal punishment called “confrontational retributivism” that is based on a communicative conception of retribution, see Markel, Dan, What Might Retributive Justice Be?, in Retributivism: Essays on Theory and Policy (White, Mark D. ed., forthcoming)Google Scholar.

88. On the retributive requirement that the punishment fit or be proportionate to the wrong/crime, see, e.g., Hampton, supra note 87, at 13; Moore, Michael S., The Moral Worth of Retribution, in Responsibility, Character, and the Emotions 179, 180 (Schoeman, Ferdinand ed., 1987)Google Scholar; Davis, supra note 86, at 727.

89. Black, supra note 2, at 932.

90. This is not to say that the sanction the CHD imposes necessarily exhausts the punishment the plaintiff-wrongdoer deserves.

91. Supra note 15.

92. See, e.g., Kolber, Adam J., The Subjective Experience of Punishment, 109 Colum. L. Rev. 182 (2009)Google Scholar.

93. See supra note 6.

94. See Dobbs, supra note 1, at 70–71.

95. See, e.g., Stewart v. Jackson, 635 N.E.2d 186, 189–190 (Ind. Ct. App. 1994) (“Indiana has recognized the ability to purge oneself of wrongdoing, which effectively restores the right to equitable relief. . .. Because the Stewarts no longer [illegally] operate any businesses from their home, they have purged themselves of unclean hands.”) (citations omitted); Estate of Blanco, 86 Cal. App. 3d 826, 833 (1978).

96. In fact, the CHD may actually benefit such litigants in saving them litigation costs.

97. For this objection I am grateful to one of the referees for Legal Theory.

98. Fischer, supra note 9, at 462–463. See, e.g., Farino v. Farino, 450 N.Y.S.2d 593, 594 (N.Y. App. Div. 2d Dep't. 1982).

99. One such example is the Israeli legal system. See, e.g., Nibit Systems, Inc. v. State of Israel—Ministry of Commerce and Industry, HCJ 579/89 1; Balles v. Dist. Attorney of Tel Aviv, HCJ 742/86 1.

100. Id.

101. Dobbs, supra note 1, at 184.

102. For example, where there are exigent circumstances, a litigant may pursue a temporary restraining order without providing the defendant with prior notice. Fed. R. Civ. P. 65(b) (2010).

103. See supra note 30.

104. Supra note 15.

105. Gardner, John, What Is Tort Law For? 1, The Place of Corrective Justice, 30 Law & Phil. 1, 3 (2011)CrossRefGoogle Scholar.