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15 - Equity and the Modern Mind
from Part III - Functional, Analytical and Theoretical Views
- By Emily Sherwin
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
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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.