Find Paper, Faster
Example:10.1021/acsami.1c06204 or Chem. Rev., 2007, 107, 2411-2502
Irit Samet, Equity: Conscience Goes to Market
University of Toronto Law Journal  (IF1.234),  Pub Date : 2020-03-01, DOI: 10.3138/utlj.2019-0084
Manish Oza

Irit Samet’s Equity develops a novel and philosophically rich interpretation of the body of law originating in the English Court of Chancery, the body of law known as ‘Equity.’ Equity began as a response to particular cases where the rigid procedures of the common law led to substantive injustice. In such cases, the Court of Chancery could intervene to force individuals to act according to the dictates of ‘conscience.’ As Lord Ellesmere LC wrote, ‘when a Judgment is obtained by Oppression, Wrong and a hard Conscience, the Chancellor will frustrate and set it aside, not for any error or Defect in the Judgment, but for the hard Conscience of the Party.’ Over time, Equity was itself systematized, and in the 1870s the separate courts responsible for Equity and common law were fused: from then on, one court could apply both bodies of law. But many Equitable doctrines retained the marks of their origin: broad principles, stated in morally freighted language (‘conscience,’ ‘clean hands,’ ‘loyalty,’ and so on) and applied in a backwards-looking and fact-sensitive way (xv). The fusion of Equitable and common law courts raised the question whether the substantive bodies of law developed by these courts ought to be fused as well. Samet’s aim, in this constructive and tightly argued book, is to defend Equity against the fusionists. We can reconstruct her argumentative strategy in two steps, which rebut different strands of the fusionist project (120). Some fusionists maintain that the separation of Equity from common law is a historical accident, so that little of substance would be lost by formalizing its rules in the style of property and contract. Others grant that Equity pursues a distinctive normative ideal but suggest that this ideal is unjustifiable in a modern legal order. Samet argues, first, that Equity is not just a grab bag of doctrines that happen to share an origin; rather, it is unified around a distinctive normative ideal. This ideal would be undermined in a fused legal system, because it requires the flexible and particularistic approach that is typical of Equity as opposed to common law (2). Second, Samet argues that the normative ideal served by Equity is still worth BOOK REVIEW