This essay considers the fusion of law and equity through the lens of translation. It begins by showing that translations vary along two dimensions. First, a translator might follow the lead of the original, translating it closely; or a translator might try to creatively remake it. Second, a translator might carry over only the substance of the work, or the substance as well as the form. Now the relevance for law: Just as translations vary along these two dimensions, so do views of equity. Some scholars urge an exact translation from equity’s past; others want a creative remaking of equity in the present. Some scholars care only about the substance of equity; others think the substance and the form are both valuable (and indeed interlocking).
Two implications emerge. First, many of the debates about fusion that seem to be about how closely we should follow equity’s past are in fact about something else entirely: they are debates about whether it is only the substance of equity that is valuable, or also its form. Second, for the future of fusion, there are more possibilities than has been appreciated.
Bray, Samuel L, Form and Substance in the Fusion of Law and Equity (December 23, 2016).