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EquityConscience Goes to Market$
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Irit Samet

Print publication date: 2018

Print ISBN-13: 9780198766773

Published to Oxford Scholarship Online: February 2019

DOI: 10.1093/oso/9780198766773.001.0001

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Equity’s Own Room

Equity’s Own Room

(p.1) 1 Equity’s Own Room

Irit Samet

Oxford University Press

This chapter explains why Equity should be kept as an independent vibrant body of law. It opens by discussing two strands of the opposition to the dualist system of Equity and Common Law: the fusion project, which advances the idea that the differences between Equity and Common Law ought to be ironed out so as to create one seamless cloth of private law; and the ‘conscionability scepticism’, which rejects the standard of conscience—the most familiar characteristic of Equity. The chapter analyses both views in terms of the Rule of Law (ROL) ideal and goes on to argue that Equity promotes a legal virtue that is neglected by Common Law’s fixation on the ROL ideal: the ‘Accountability Correspondence’. I then attempt to show how Equity reintroduces an essential equilibrium between Accountability Correspondence and the ROL, and the dangers of neglecting to promote such equilibrium. The chapter then explains why the characteristics most associated with Equity, namely, the use of flexible, ad hoc, ex post morally freighted principles, are necessary for the attainment of this goal. Next, I contend that the standard of conscionability—the epitome of Equity’s unique mode of action, is not at all as hostile to the ROL ideal as many conscionability sceptics claim.

Keywords:   private law, conscionability, standard of conscience, Rule of Law, ROL, Accountability Correspondence

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