Andrew Gold, ‘Equity and the Right to Do Wrong’

On some views, equity prevents people from being sticklers for their rights in a bad way. This perspective has merit, but it offers an incomplete picture. Often, individuals get to insist on their legal rights even when it is immoral or undesirable for them to do so. The interesting question then is why equity sometimes cares about stickler behavior, and sometimes is blind to it. This chapter will suggest that equity enables courts to avoid assisting individuals in enforcing their rights when it is morally questionable for courts to help out.

This perspective also has bearing on the view that equity involves a distinctive, even preferable, type of justice. This chapter suggests that equity’s justice can be better than ordinary legal justice, but that it isn’t always better. Authorship matters when we assess the merits of equity. An equitable plaintiff may voluntarily accept less than her due, in the process bringing about a type of justice that is an improvement over stubbornly insisting on her rights. If, on the other hand, an equitable judge forces the plaintiff to accept less than her due, the merits of that intervention may differ.

Gold, Andrew S, Equity and the Right to Do Wrong (February 22, 2019) in Dennis Klimchuk, Irit Samet, and Henry E Smith, eds, Philosophical Foundations of the Law of Equity (Oxford University Press, forthcoming).

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