Paul B. Miller (Notre Dame Law School) has posted Equity as Supplemental Law (Dennis Klimchuk, Irit Samet, and Henry E. Smith, eds., Philosophical Foundations of the Law of Equity (Oxford: Oxford University Press, Forthcoming)) on SSRN. Here is the abstract:
How, in general terms, ought we to understand equity’s contributions to law? Most contemporary equity theorists endorse a broadly remedial conception of equity. The remedial conception suggests that equity is a handmaiden to law in the pursuit of justice. Equity, so understood, is not itself law in a conventional sense. Instead, equity intervenes in the law in aid of our ambition to do justice through law, and it does so primarily by way of remedies properly so-called, or by devices that restrain the enforcement of legal rights.
The remedial conception emphasizes important facets of equity but it misleadingly positions equity beyond law. In doing so, it excludes critically important contributions that equity has made to law as such (contributions ranging from the trust to the equity of redemption). In this chapter, I draw attention to these contributions and argue that they show that equity functions as an important source of supplemental law.
The chapter provides a detailed illustration and explication of the conception of equity as supplemental law. I emphasize that much equitable doctrine must be understood as law in a conventional sense, consisting, as it does, in deontic rules that are packaged in a modular way and that operate generally, prospectively, and in a manner typically invariant to context. Nevertheless, I argue, as supplemental law, equity is secondary to primary sources of law: equity assumes the existence of law derived from primary sources, and performs a gap-filling function relative to it. Recognizing that this account might draw the ire of those who believe fusion to be an existential threat to equity, the chapter canvasses some implications of broader recognition of equity’s supplemental function for the debate over the fusion of law and equity. Furthermore, recognizing that equity enjoys no monopoly on the supplementation of law, the chapter provides an analysis of the relationship between equity and alternative sources of supplemental law.