Equitable Defences As Meta-Law

Defences in Equity, Paul S. Davies, Simon Douglas & James Goudkamp, eds., Hart 2018

Harvard Public Law Working Paper No. 18-15

34 Pages Posted: 13 Mar 2018 Last revised: 6 Jun 2018

Date Written: March 5, 2018

Abstract

Equitable defences are the front line of controversy over fusion. Because law and equity offer a range of defences that partially overlap and the rationale for matching equitable defences to equitable remedies is at least as obscure as the rationale for separate equitable remedies, conventional wisdom holds that the more one can fuse the equitable defences into the law the better. In this chapter I argue that equity roughly reflects a distinct function - a safety valve that operates at a higher (meta) level over the rest of the law and that responds to problems of high uncertainty and variability. These characteristic problems include opportunism and multipolar conflicts. From a functional point of view, some of the special treatment of equitable defences makes sense, and puzzling patterns in this area receive an explanation and some justification. Even the adaptation of some equitable defences into the law dovetails with a dynamic picture of the equitable function.

Keywords: Equity, Defenses, Remedies, Second-Order Law

JEL Classification: K10, K11, K12, K13

Suggested Citation

Smith, Henry E., Equitable Defences As Meta-Law (March 5, 2018). Defences in Equity, Paul S. Davies, Simon Douglas & James Goudkamp, eds., Hart 2018 , Harvard Public Law Working Paper No. 18-15, Available at SSRN: https://ssrn.com/abstract=3134804

Henry E. Smith (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

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