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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.
The fusion of law and equity in common law systems was a crucial moment in the development of the modern law. Common law and equity were historically the two principal sources of rules and remedies in the judge-made law of England, and this bifurcated system travelled to other countries whose legal systems were derived from the English legal system. The division of law and equity - their fission - was a pivotal legal development and is a feature of most common law systems. The fusion of the common law and equity has brought about major structural, institutional and juridical changes within the common law tradition. In this volume, leading scholars undertake historical, comparative, doctrinal and theoretical analysis that aims to shed light on the ways in which law and equity have fused, and the ways in which they have remained distinct even in a 'post-fusion' world.
In his important article, Benito Arruñada draws out the significance of sequential exchange for property rights and traces inadequacies in the economics of property rights to its overly contractual focus, to the exclusion of multiple transactions on the same asset. In this comment, I argue that although Arruñada's problem is a genuine one, it is part of a larger inadequacy in the economic analysis of property rights: property institutions have to manage complexity stemming from many kinds of interactions, making it problematic to focus solely on local interactions. Modular structures in property, including legal ‘things’ themselves, serve to manage this complexity. The larger problem of complexity allows us to set sequential exchange in its proper context.