In this essay, I examine the role that equity historically has played in moderating the outcomes of determinate legal rules in particular cases. The advantage of traditional equity was that its role within the legal system was subordinate relatively obscure, allowing courts to affirm the authority of rules while altering their consequences in particular cases. One of the objectives of American Legal Realism was to bring equitable principles to the forefront of law. I suggest that the transition proposed by the Realists may undermine the important compromise courts were able to strike through more traditional management of equity.
Sherwin, Emily L, Modern Equity (March 26, 2018). Philosophical Foundations of Equity (Dennis Klimchuk, Irit Samet, and Henry Smith, eds, Oxford University Press, 2019) forthcoming; Cornell Legal Studies Research Paper No 18-24.