The Constitution of Equity

Abstract

I defend three related ideas regarding the law of Equity (‘Equity’), and discuss another that is much more speculative. The first two related ideas are that Equity has the characteristic form of public law, and that Equity shares public law’s basic concern, which is to regulate power held by one party for the benefit of another. Equity and public law alike are structured by the presence of other-regarding power in the legal relations they govern. The third related idea is that the legal form of Equity and public law answers to a particular kind of justice that is neither corrective justice nor distributive justice, but what I call jurisdictional justice. The speculative idea I consider is that Equity is best regarded as a species of public law.

I refer to the conjunction of the first three ideas as the weak public law theory of Equity. This theory is consistent with Equity belonging on either side of the private law/public law divide. I refer to the conjunction of all four claims as the strong public law theory of Equity. On this account, Equity is a species of public law. My aim is to defend the weak public law theory, identify some of the obstacles that stand in the way of the strong theory, and then nonetheless offer some tentative arguments that aim to show some of the features and possible merits of the strong theory.

In Part II I distinguish Equity’s anti-opportunism law, which involves cases of rights sticklers and opportunists, and Equity’s jurisdictional law, which is mainly cases involving fiduciary relations, such as trusts or agency relations. Part III compares trust law and administrative law, and a series of doctrines they share. In Part IV I discuss other-regarding powers. These powers are a defining and structural feature of Equity. Their significance to Equity is the principal basis for thinking that Equity has the form of public law. In Part V I argue that Equity is structured by jurisdictional justice. This is the form of justice apposite to supervisory review of the exercise of other-regarding powers. Its structure is plainly evident in Equity’s jurisdictional law. In Part VI I argue that this mode of justice is also present in Equity’s anti-opportunism law. In Part VII I canvas some of the advantages of the weak and strong public law theories, and their explanatory power.

Keywords: Equity, legal power, administrative law, public law, trust law, agency law, fiduciary law, jurisdiction, judicial review of administrative action

JEL Classification: K10, K11, K12, K13, K23, K41, K42