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Equity can be defined as the use of a more flexible, morally judgmental, and subjective mode of legal decision making that roughly corresponds with historical equity. This Element presents a simple contracting model that captures the role of equity as a safety valve, and shows how it can solve problems posed by opportunists–agents with unusual willingness and ability to take advantage of necessary imperfections in the law. In this model, a simple but imperfect formal legal regime is able to achieve first best in the absence of opportunists. But when opportunists are added, a more flexible regime (equity), can be preferred. However, equity is also vulnerable to being used opportunistically by the parties it intends to protect. Hence, the Element shows that it is often preferable to limit equity, reserving it for use only against those who appear sufficiently likely to be opportunists.
It is rare for something as precise and analytical as Wesley Hohfeld’s system of legal relations to serve as a Rorschach blot. For a century now, legal theorists have seen reflected in it their picture of a flat undifferentiated landscape of law – protean material for refashioning on policy grounds. This was not Hohfeld’s vision and yet it is not wholly untrue to it either. Hohfeld believed, as did many others in his day, that greater clarity about basic legal concepts and clearing away ambiguities would make law transparent to policy and lead inexorably to improvement in the law.1 The first step in clearing away the cobwebs was to ground the law in its micro foundations. This is where the trouble starts.
In the century or so after the untimely death of Wesley Newcomb Hohfeld, his ideas have been a source of inspiration for widely divergent streams of legal scholarship. More generally, the nature of his ideas and the circumstances of his life have placed him at the crossroads of many currents of legal and social thought, making him a – somewhat fortuitously – pivotal figure in legal theory. And, after all the many explications and applications of his framework, it is as fresh and in many ways as enigmatic as on the day he left it in its unfinished state.
Wesley Hohfeld is known the world over as the legal theorist who famously developed a taxonomy of legal concepts. His contributions to legal thinking have stood the test of time, remaining relevant nearly a century after they were first published. Yet, little systematic attention has been devoted to exploring the full significance of his work. Beginning with a lucid, annotated version of Hohfeld's most important article, this volume is the first to offer a comprehensive look at the scope, significance, reach, intricacies, and shortcomings of Hohfeld's work. Featuring insights from leading legal thinkers, the book also contains many of Hohfeld's previously unseen personal papers, shedding new light on the complex motivations behind Hohfeld's projects. Together, these selected papers and original essays reveal a portrait of a multifaceted and ambitious intellectual who did not live long enough to see the impact of his ideas on the study of law.
This chapter shows that fusion in the United States, particularly under the influence of Legal Realism, has seen all of tort law become equitable – or all of tort law swallowed up by equity. Each of tort and equity has, under this influence, the potential to swallow up all of private law. The chapter shows, however, the tort law is nevertheless distinct – particularly from equity. Tort law rules are general commands simply understood and relatively simply applied. They are intended to guide the behaviour of all people. Equity, in contrast, mainly consists of second-order rules: rules that presuppose other rules, and control how those other rules work. Fusion is explored by seeing where tort law rules have been injected with second-order (equitable) rules and where equity has produced a doctrine that has become embedded in the law as a set of first-order rules. There is a case for having both first- and second-order rules in the law today.