Fusing the Equitable Function in Private Law

Forthcoming, Private Law in the 21st Century, Kit Barker, Karen Fairweather, and Ross Grantham eds., Oxford: Hart

Harvard Public Law Working Paper No. 16-27

28 Pages Posted: 25 May 2016 Last revised: 7 Jun 2016

Date Written: March 31, 2016

Abstract

Whether and to what extent we should desire the fusion of law and equity depends on the function it serves. This paper draws on systems theory to show how equity is a second-order check on the workings of the law, when complex problems such as party opportunism call for such targeted intervention. Seen from this standpoint, the substantive distinctiveness of equity is potentially valuable even if it is administered in a unified court system. Because this function has not been sufficiently recognized, fusion has been carried too far, especially in the United States. Symptoms of an under theorized excessive fusion of law and equity include multi-factor balancing tests, a polarization of formalism and contextualism, and a flattening of the law’s approach to remedies.

Keywords: Equity, fusion, systems theory, opportunism, uncertainty, formalism, contextualism, private law, remedies

JEL Classification: D82, K10, K11, K12, K40

Suggested Citation

Smith, Henry E., Fusing the Equitable Function in Private Law (March 31, 2016). Forthcoming, Private Law in the 21st Century, Kit Barker, Karen Fairweather, and Ross Grantham eds., Oxford: Hart, Harvard Public Law Working Paper No. 16-27, Available at SSRN: https://ssrn.com/abstract=2783483

Henry E. Smith (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

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