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2 results

  • 15 - Equity and the Modern Mind

  • from Part III - Functional, Analytical and Theoretical Views
  • Edited by John C. P. Goldberg, Harvard Law School, Massachusetts, Henry E. Smith, Harvard Law School, Massachusetts, P. G. Turner, University of Cambridge
  • Book:
    Equity and Law
    Published online:
    26 July 2019
    Print publication:
    01 August 2019, pp 353-373

  • Summary

    Rules are general in their scope and application, such that they inevitably produce injustice and hardship in particular cases. How might the law respond to this? The solution found in English law was provided by the Court of Chancery: particular cases can be held to fall outside the general rules, and equity be done accordingly. Before American Legal Realism became influential, this distinction was firm in the case law. However, Legal Realism has prompted lawyers to treat all law as equitable: all legal decisions are to respond to the particular facts of the case, and the judge is encouraged to decide cases in that way. This has removed the special quality of equitable rules.