Philosophical Foundations of the Law of Equity

Description

The law of Equity, a latecomer to the field of private law theory, raises fundamental questions about the relationships between law and morality, the nature of rights, and the extent to which we are willing to compromise on the rule of law ideal to achieve social goals. In this volume, leading scholars come together to address these and other questions about underlying principles of Equity and its relationship to the common law: What relationships, if any, are there between the legal, philosophical, and moral senses of 'equity'? Does Equity form a second-order constraint on law? If so, is its operation at odds with the rule of law? Do the various theories of Equity require some kind of separation of law and equity-and, if they do, what kind of separation? The volume further sheds light on some of the most topical questions of jurisprudence that are embedded in the debate around 'fusion'. A noteworthy addition to the Philosophical Foundations series, this volume is an important contribution to an ongoing debate, and will be of value to students and scholars across the discipline. cover Half title Philosophical Foundations of the Law of Equity Copyright contents List of Contributors vii Introduction 1 1. Discretionary Justice 12 Charlie Webb 2. Aristotle at the Foundations of the Law of Equity 32 Dennis Klimchuk 3. Equity, Justice, and Conscience: Suitors Behaving Badly? 52 JE Penner 4. Equity and the Right to Do Wrong 72 Andrew S Gold 5. Equity as Supplemental Law 92 Paul B Miller 6. The Constitution of Equity 116 7. Equity Is Not a Single Thing 144 Lionel Smith 8. Pathways to Legal Rights: The Function of Equity 168 Larissa Katz 9. What’s Special about Equity? Rights about Rights 191 Ben McFarlane and Robert Stevens 10. Fusion of Law and Confusion of Equity 210 Henry E Smith 11. Form and Substance in the Fusion of Law and Equity 231 Samuel L Bray 12. Equitable Correction of Law 249 Emily Sherwin 13. What Can ‘Equity’s Darling’ Tell Us about Equity? 264 Aruna Nair and Irit Samet 14. From Riggs v Palmer to Shelley v Kraemer: Judicial Power and the Law– Equity Distinction 291 John CP Goldberg and Benjamin C Zipursky 15. Some Varieties of Consent in Equity: Enhancing and Protecting Autonomy? 313 Simone Degeling 16. Equity and Institutions 333 Matthew Harding 17. The Equity of the Statute 352 James Edelman Index 371