common law and equity essay

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Article Contents

1. introduction, 2. the sceptical challenge, 3. safety valves and sticklers, 4. rights against rights and rights to rights, 5. the common law rule of incontrovertible evidence and freedom as free choice, 6. equity and autonomy, 7. is equity unified, 8. conclusion.

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What is Distinctive about the Law of Equity? †

† A review of Dennis Klimchuk, Irit Samet and Henry E Smith (eds), Philosophical Foundations of Equity (OUP 2020), hereinafter Philosophical Foundations .

Assistant Professor, Osgoode Hall Law School. Email: [email protected] . Thanks to Alan Brudner, Dan Priel and an anonymous reviewer for helpful comments.

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Jennifer Nadler, What is Distinctive about the Law of Equity?, Oxford Journal of Legal Studies , Volume 41, Issue 3, Autumn 2021, Pages 854–872, https://doi.org/10.1093/ojls/gqaa065

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What is distinctive about the law of equity? In his lectures on equity, Maitland argued that the answer to this question is ‘nothing’. As the editors of Philosophical Foundations of Equity note in their introduction, Maitland’s view was that equity is just a body of judge-made law that originated in a particular court, and its distinctiveness was therefore abolished by statute in the 19th century. 1 If Maitland was right, equity describes a body of law united only by historical circumstance; accordingly, any attempt to elucidate its philosophical foundations would be entirely misguided.

Many of the contributions to this collection of essays are united in arguing that Maitland was wrong, that there is something conceptually, not merely contingently, distinctive about the law of equity, and that equity therefore has a distinctive philosophical foundation that might be uncovered and understood. This is the view that gives this collection its title and its purpose. However, other contributors to this collection are either explicitly or implicitly sceptical about equity’s conceptual distinctiveness and are therefore explicitly or implicitly sceptical about the book’s fundamental aim. In this review article, I elucidate this sceptical challenge and consider whether or not the contributions to the collection answer it. Concluding that the sceptical challenge has not been adequately answered, I set out a view of equity’s distinctiveness and philosophical foundation that draws upon, but moves beyond, this rich and diverse collection of equity scholarship.

In the collection’s opening chapter, Charlie Webb argues that equity’s main function is to correct bad laws. 2 This view is echoed by Paul Miller, who argues that equity supplements law where the common law imperfectly serves the interests and values that ‘it can, does, and should protect.’ 3 Webb offers a number of examples of the way equity performs this function. Whereas the common law allowed a contract to be set aside for misrepresentation only if the misrepresentation was fraudulent, equity, recognising the injustice of the common law position, would set aside a contract procured by innocent misrepresentation. 4 The common law rule was a bad rule; and there was no reason, according to Webb, why the common law could not have adopted a rule that said that all misrepresentations render a contract voidable. But although the common law could have adopted such a rule, it did not; so equity provided us with the better rule. 5 Similarly, the common law rule was that a sealed bond was incontrovertible evidence of a debt. This rule was bad and easily abused in cases where the debt was paid but the sealed bond mistakenly was not cancelled. The common law could have modified its position, but it did not; so equity supplied the modification and heard evidence of payment despite the presence of the seal. 6 James Penner seems to adopt a similar view of the trust. The trust, Penner argues, is just an example of equity doing what ‘regular justice’ requires, since enforcing trusts is just an application of the principle pacta sunt servanda . 7 If the common law neglected this principle, we might therefore conclude, it was just bad law.

It is important to see that if the thesis of these writers is correct, there is nothing distinctive about equity. Equity, on this view, responds to bad law, but there is no reason in principle why the common law could not have corrected itself. Equity performs a role that would not be needed if law makers had done their jobs well. Moreover, if this is correct, an account of equity’s philosophical foundations would be no different from an account of law’s philosophical foundations since, on this view, equity is just good law. Finally, if equity responds to bad law, then fusion must be the way forward. Why allow good and bad law to persist side by side? Surely the good should simply replace the bad. This collection of essays on equity’s distinctive philosophical foundations thus contains within it a deep challenge to the entire project. But since the sceptical challenge and its fusionist conclusion rest on the assumption that equity responds to contingent defects in the common law and is therefore itself contingent, we can answer the challenge and resist the conclusion if we can show two things: first, that law’s need for equity’s correctives is conceptual and therefore necessary rather than contingent; and secondly, that the common law makes a necessary contribution to our legal order despite its conceptual limitations.

There is a popular account of law and equity that tries to show that each does something that the other cannot. This account draws on Aristotle, who argued that

all law is universal but about some things it is not possible to make a universal statement which will be correct … And this is the nature of the equitable, a correction of law where it is defective owing to its universality. 8

Emily Sherwin, for example, treats the difference between law and equity as the difference between fixed general rules and ad hoc leniency. 9 Andrew Gold contrasts the ‘more rule-like or context-insensitive justice’ of the common law with the ‘more desirable context-sensitive’ justice of equity 10 and Samuel Bray writes that equity’s form is characterised by a preference for standards over rules. 11 Henry Smith, extending Aristotle’s contrast between the universal and the particular, argues that whereas law is a first-order system that establishes general and fixed rules of conduct, equity is meta- or second-order law that suspends law in the particular case and acts as a safety valve to prevent the opportunistic exploitation of law’s generality and rigidity. 12

The trouble with accounts of equity that take as their starting point Aristotle’s contrast between general antecedently fixed rules and flexible standards or ex post modifications is that they fail as a descriptive matter. They may seem to accurately describe, for example, the relationship between the clear fixity of the Statute of Frauds and the vague flexibility of its equitable exceptions. 13 But there are many common law doctrines that look nothing like clear and fixed general rules. A successful claim in adverse possession must be continuous, open and notorious. But what counts as continuous and what counts as open and notorious will vary with context, and will be a matter of judgment on the particular facts. If the land is farmland, is the possessor’s use continuous if he uses it only during the harvest season? 14 If the land is heavily wooded, is the possessor’s use open if his cabin is visible from the air though not from land? 15 In contract law, an offer is a voluntary manifestation of an intention to be bound—but what type of conduct satisfies this requirement? Does the circulation of a price list indicate an intention to be bound? 16 What about the circulation of a price list along with the words ‘will be happy to receive an order from you’? 17 The parol evidence rule says that extrinsic evidence cannot be introduced to contradict the written terms of a contract. But whether or not the extrinsic evidence contradicts the written terms or merely supplements them varies with context and is always a matter of judgment on the facts. 18

In short, if generality is contrasted with case-by-case decision making in which judges work out how universal principles apply to the particular circumstances of the case before them, then neither the common law nor equity is general. The common law, like equity, is not a set of fixed rules determined in advance but is, as Webb says, ‘made in its application’. 19 On the other hand, if generality is contrasted with a particularism for which each set of circumstances is irreducibly unique, then both common law and equity are general. Both assume that like cases ought to be treated alike and that one case can be normatively, even though not empirically, like another. 20 Equity, like the common law, is a system of reasoning that subsumes particular facts under universal principles, not an ad hoc determination of what seems fair under the circumstances. 21

In his contribution to this volume, Henry Smith focuses less on the distinction between rigid rules and flexible modifications and more on the distinction between law and metalaw. Equity, Smith argues, is metalaw, operating at a higher level than law in order to resolve problems of polycentricity, conflicting rights and opportunism—problems that are difficult to resolve at the level of primary rules of conduct. 22 But what justifies the characterisation of equity as metalaw? It is true that equity frequently supervenes upon common law principles; but the common law has doctrines that supervene upon its primary principles as well. The common law doctrines of illegality and mistake allow a court to refuse to enforce an agreement that meets all the requirements of contract formation. The doctrine of adverse possession supervenes on the ordinary law against trespass. On the other hand, as Paul Miller argues, equity frequently specifies primary rights and duties. The life tenant has an equitable duty, owed to the remainder-person, not to commit waste. 23 The trust gives the beneficiary the right to the property’s beneficial use and puts the trustee under a correlative duty to use the property for the beneficiary’s benefit. The restrictive covenant gives the dominant tenement owner a right against the servient tenement owner and puts the servient tenement owner under a duty to honour the terms of the covenant. It is hard to see why these doctrines should be conceived as law about law; they look like law, in the sense that they articulate rights and obligations.

Agreeing that the Aristotelian contrast between generality and particularity fails to disclose a contrast between the common law and equity, Dennis Klimchuk argues that equity’s distinctiveness is illuminated by a different passage from Aristotle: ‘the equitable man … is no stickler for justice in a bad sense but tends to take less than is share though he has the law on his side’. 24 A stickler, Klimchuk says, insists on her rights in circumstances where it is inappropriate do so and so acts within, but in abuse of, her rights. 25 Equity responds by refusing to allow the stickler to enforce her rights in the particular case.

What does it mean to act within, but in abuse of, a right? How can an action properly characterised as an abuse of right be legally permissible? If something is legally permissible, from what perspective is it characterised as abuse? There is another way of putting this puzzle that echoes the sceptical challenge to equity’s distinctiveness. If an exercise of rights is properly characterised as an abuse, why does the common law not recognise this and reformulate its conception of what constitutes a permissible exercise of one’s rights? It cannot be doubted that the common law is capable of such refinements. The ownership of property entails a right to possess, use and alienate the property as one sees fit. But since A’s preferred use of her property may make it impossible for B to make ordinary use of her neighbouring property, the common law of nuisance says that each has the right only to make reasonable uses of her property. One might say that the common law of nuisance recognised certain uses of property as abuses of property, and so formulated a limitation on property rights that incorporates this insight. The one whose use makes it impossible for her neighbour to use her property in an ordinary way is therefore not a stickler for her property rights; she is a wrongdoer. 26

Here is another example. It is a general rule in contract law that acceptance of an offer must be communicated by the offeree to the offeror and that the offeree’s silence cannot be construed as acceptance. 27 There is a potential for abuse here. Suppose that A and B have an ongoing arrangement whereby A delivers perishable produce to B and B inspects the produce and informs A whether or not she will accept it. Over time, A regularly delivers produce to B and, after inspection, B keeps it without further communication. One day, B decides that she does not want A’s produce. When the usual delivery arrives, can B remain silent while the produce perishes, refuse to make the payment demanded by A and rely on the rule that silence does not constitute acceptance? No, she cannot. The common law recognises an exception to the usual rule. Silence does not constitute acceptance unless, given a course of dealings between the parties, it is reasonable for the offeror to construe the offeree’s silence as acceptance. 28

So, the common law is capable of recognising limitations on the legitimate exercise of one’s rights, and it is capable of recognising exceptions to general rules, exceptions that respond to possibilities of abuse. The question then is: if equity responds to abuses of common law rights, why did the common law not recognise these abuses and respond to them itself? For example, why did the common law not carve out an exception to the rule that a sealed bond constitutes incontrovertible evidence of a debt for cases where the debt was paid but the bond was mistakenly not cancelled?

Klimchuk has a response to this last question. There are, he says, three groups of ideas that explain why the common law did not recognise an exception to the rule that a sealed bond is incontrovertible evidence of a debt. First, the common law had a rule against parol evidence, a rule intended to make debts secure against dishonest debtors. 29 Secondly, the common law rule was salutary in that in encouraged debtors to be careful. 30 Thirdly, the rule was the price the debtor was forced to pay for his own carelessness in failing to have the bond cancelled. 31 But this response is unsatisfactory. If the rule that a sealed bond is incontrovertible evidence of a debt follows from the parol evidence rule, that only prompts the question of why the common law did not carve out an exception to the parol evidence rule in such cases. If the rule encouraged debtors to be careful and punished them for their carelessness, it did so by rewarding deceit, and so one must wonder why the common law did not recalibrate its incentive structure in light of this realisation. In the end, Klimchuk’s characterisation of the common law rule that a sealed bond is incontrovertible evidence of a debt is no different than the sceptic’s: it was bad law. The need for an equitable response to the stickler is just a consequence of the fact that the law the stickler seeks to enforce is a bad one. But if the common law’s need for an equitable supplement can only be explained in terms of rules and policies that the common law itself might have refined, reformed or abandoned, then we have failed to explain equity’s conceptual distinctiveness.

Whereas Klimchuk argues that equity is distinguished by its substantive concern for stickler behaviour, McFarlane and Stevens argue that much of equity is distinguished not by its substance, but by its form. Equity is second-order law, they argue, but it is second-order law that has a particular formal structure: equitable rights are rights in relation to other rights. 32 For example, the trust gives the beneficiary a right against the trustee’s exercise of her property rights; equitable contractual assignment gives the assignee rights against the assignor’s exercise of her contractual rights.

However, the formal structure of equity cannot by itself distinguish equity from the common law, because the common law recognises rights in relation to other rights too. Negligence law gives the plaintiff a right to security that stands in relation to the defendant’s right to liberty; nuisance law gives the plaintiff a right to the ordinary use of her property that stands in relation to the defendant’s equal right to the same; defamation law gives the plaintiff a right in relation to the defendant’s right to speak freely; copyright law gives one author a right in relation to another’s rights as an author; a licensee has rights in relation to the licensor’s rights as a property owner, and so on.

In response to this sort of criticism, McFarlane and Stevens argue that what is distinctive about equity is that the subject matter of the equitable right is another person’s right. 33 It is not obvious what this means, but I think the idea is the following. In the case of nuisance, the subject matter of the plaintiff’s right is her property and her property right grounds her complaint about the defendant’s extraordinary property use. In the case of negligent bodily injury, the subject matter of the plaintiff’s right is her body and her right to her body’s present condition gives her a claim against the defendant who causes her bodily injury through carelessness. In the case of copyright, the subject matter of the plaintiff’s right is her expression and her right to her own expression gives her a right against others’ copying. In all these cases, the plaintiff has an underlying right we might describe as proprietary 34 (her property, body or expression are hers ) and that underlying proprietary right grounds a complaint against the defendant’s behaviour. In the case of the trust, however, the plaintiff has no proprietary right that grounds her claim. Her right is not to the trust property, but only that the trustee exercise her rights in the property in a particular way. Likewise, in the case of equitable assignment, the equitable assignee does not have a right to the contractual performance; she has a right only that the assignor act in a particular way with respect to the assignor’s own contractual rights. 35  

So, perhaps what is distinctive about equity is not that it recognises rights against rights, but that it recognises rights that have no proprietary basis against rights. I think this is an important insight, but it disturbs two of the central claims of McFarlane and Stevens’s chapter, which are that equity is distinguished by its second-order status and by its form. On the view that I have just elaborated, equity operates on the same level as law—it recognises rights that, like common law rights, stand in relation to other rights; but it is different from law in the substance of the rights it recognises, namely, rights that are not grounded in proprietary entitlements. But if the difference between law and equity cannot be explained on the basis of the difference between first-order and second-order principles, the question arises: why does equity recognise rights that the common law does not? If the common law does not recognise them, why should equity?

If we consider Goldberg and Zipursky’s contribution to this collection, we will see that the same question can be asked from the other direction. Goldberg and Zipursky argue that whereas law provides civil recourse for wrongs committed by one individual against another, equity responds where the law works an injustice against the claimant. 36 Goldberg and Zipursky collect together a number of different types of cases to which equity responds: cases where a valid transaction works an injustice against the claimant, cases where a defective transaction results in an unjust pattern of holdings, cases where the plaintiff’s opportunistic insistence on his rights works a substantial injustice and cases where the remedies available at law are inadequate. What is missing from this account is a theory of why the common law allowed itself to become the vehicle for so much injustice, never noticing the need for modification. Why does the common law recognise the validity of transactions that work an injustice against the claimant? Why did the common law not respond to opportunistic abuses of its doctrines? Why did the common law provide remedies that were obviously inadequate? The answer cannot be that the common law confined itself to providing civil recourse for private wrongs. Many common law doctrines specify the validity conditions of, for example, transfers of property and binding contracts. Moreover, a focus on civil recourse cannot explain why the common law provided recourse through remedies that are an inadequate form of recourse in a range of ordinary cases. So why do the common law doctrines not recognise the injustices to which Goldberg and Zipursky refer? Why, in other words, is the common law blind to forms of injustice that only equity can see?

Larissa Katz’s contribution may be understood as an answer to this question. Katz argues that equitable doctrines resolve a special problem that arises in relation to acquired rights, that is, property rights and contractual rights. Acquired rights must be acquired, but the procedure for acquisition is not instantaneous. Acquiring rights is a journey along a pathway and being on the pathway to rights is a vulnerable place to be. You might be interrupted on the pathway by the actions of another, causing you to lose the right you were well on your way to acquiring. Equity, Katz says, prevents interruptions from causing the forfeiture of rights and so helps carry individuals along the path to the right they were heading towards. 37 Katz’s argument is that equity is thus conceptually and not just contingently distinctive: equity and the common law respond to fundamentally different human problems. Law specifies the success conditions for acquired rights; equity attends to the vulnerabilities that arise as individuals make their way through the success conditions specified by law.

The idea that the common law of acquired rights specifies conditions for acquisition and that equity responds to interruptions that occur as individuals are making their way towards legal acquisition may be a plausible account of, for example, the doctrines of substantial performance and relief against forfeiture. But Katz intends her theory as a theory of the trust as well, and here the argument does not go through.

Katz says that in the case of the trust, the beneficiary may be understood as being on a path to rights that will culminate when the property in question vests in her. That pathway may be interrupted and the possibility of acquiring a property right may be lost if the trustee mishandles the property through waste. Equity steps in to constrain the trustee in ways that protect the beneficiary from losing her place on the path to rights. 38 However, this account of equity’s role is puzzling, because in the case of a property granted ‘to A, for the benefit of B’, only equity, not law, can conceive of the beneficiary as on a path to rights. The danger to B of forfeiture is equity’s creation, not the law’s, for, from the law’s perspective, A has acquired the property right and B is not making her way through the success conditions of acquiring the right in A’s place. In the case of the trust, equity does not respond to an interruption that occurs along a pathway to rights implicit in the common law of property; through the recognition of beneficial ownership, equity forges a pathway to rights—a mode of acquisition—that the law says does not exist. In other words, in the trust context, equity sets out the success conditions for an acquired right. Pettkus v Becker 39 is a vivid illustration of this point. Becker worked and made sacrifices for a bee-keeping business that she ran with her common law spouse, thinking that she was acquiring ownership in the piece of land on which the business was run. But Pettkus alone had title to the land. The end of their relationship constituted an interruption on a pathway to rights only from equity’s perspective. At common law, you do not acquire rights in land held by someone else by contributing to a joint business. Becker was thus not making her way through the success conditions stipulated by or implicit in the common law of property. When equity steps in with the concept of the constructive trust, it forges a path to property rights that the law does not recognise.

The point of the foregoing discussion is that we will not find equity’s conceptual distinctiveness by arguing that equity occupies a different domain than law, for example, second-order law versus first-order law, relief for law’s injustice versus civil recourse or the law of vulnerability to rights forfeiture versus the law of acquired rights. Equity and law say different things about the same basic doctrinal questions. They say different things about the admissibility of parol evidence, and about the significance for contract of innocent misrepresentation, mistaken assumptions, unequal bargaining power, and detrimental reliance on a promise not to enforce contractual rights. They say different things about the kinds of property ownership that are possible and about the ways one can acquire rights in property. Until we see this conflict, and explain it without relying on a contingent account of the common law’s deficiencies, we will not have answered the sceptical challenge.

Webb’s sceptical chapter ends with the following reflection:

Can [equity] be said to articulate a morality, a set of principles and priorities, distinct from the common law’s, advancing goods and values marginalized or ignored by the common law? It’s possible … I have my doubts. But if modern equity has distinctive philosophical foundations, this is where they’ll be found. 40

James Penner adds this important insight about where an investigation of equity’s distinctive philosophical foundation must begin: ‘To try to find whether equity had its own vision of justice … we would have to look in the opposite direction, trying to discern if there was a systematic, common law deficiency, to which equity responded …’ 41 I now want to sketch a theory of equity’s conceptual distinctiveness that shows that Webb is right about where equity’s distinctive characteristics and philosophical foundations are to be found, but wrong to be sceptical about the possibility of finding them there. Drawing upon Penner’s suggestion, I begin not with equity, but with the common law.

Many of the chapters in this collection make reference to the common law rule that a sealed bond is incontrovertible evidence of a debt. 42 This is a convenient example for the leading accounts of the difference between law and equity. It is easy to cast this doctrine as fixed, general and rigid; it is easy to see in the doctrine a preference for certainty and simplicity over justice in the particular case. 43 It is also easy to cast the creditor who tries to collect the debt a second time as a ‘stickler in a bad sense’, as an opportunist or as one who acts against conscience 44 or against the norms of interpersonal morality. 45 I want to begin by showing that there is more to the rule that a sealed bond is incontrovertible evidence of a debt than a preference for fixed and rigid rules or a moral disapproval of the creditor’s behaviour. I will show that this rule reflects a commitment to a certain conception of freedom, a conception of freedom that is reflected in other common law doctrines as well. I will then argue that this conception of freedom, though fundamental, is limited, and that its need for a supplement is the key to understanding equity’s conceptual distinctiveness and philosophical foundation.

Why did the common law have a rule that a sealed bond was incontrovertible evidence of a debt? The answer lies in understanding the significance of the seal. The seal was first used by the king and it signalled that his word was indisputable. If the king’s seal was affixed to a document, the truth of the document could not be contested. 46 As the use of the seal filtered down to king’s subjects, it retained this significance; if a debtor affixed his seal to a document, it signified that he could not subsequently deny that the terms of the agreement were the terms contained in the document by, for example, bringing forward transaction witnesses or compurgators. 47 A sealed bond must thus be understood as a promise by the debtor that he will not contest the terms of the bond; in return for the promise, he receives the loan. What we have in the paradigmatic case of equity’s intervention is therefore the following situation. The debtor voluntarily waived his right to contest the terms of the bond, paid the debt and then forgot to have the bond cancelled. Now the debtor is trying to do precisely what he, in exchange for the loan, agreed not to do: introduce extrinsic evidence to show that the bond does not express his obligation. The common law refused to hear such extrinsic evidence, even if it was evidence of payment.

There is no doubt that the common law’s position is harsh, but it is not simply bad; it has a justification that is worthy of our attention. The common law rule that a sealed bond was incontrovertible evidence of a debt evinces a commitment to a certain conception of freedom, freedom understood as the capacity for free choice. On this conception of freedom, each individual is a free agent in the sense that her choices are undetermined. A free agent may feel the pull of custom, powerful desires or necessitous circumstances, but a free agent is always free to choose what she will do. A free agent can always behold her empirical condition—her preferences, purposes, needs, and social and emotional ties—from a perspective of detachment and choose freely. A law that regards human beings as free in this way will be concerned with whether an agent’s action is freely chosen, that is, voluntary; and it will hold the agent responsible for her voluntary choices. It will enforce a norm of non-interference with free agency and its manifestations (by recognising the agent’s exclusive authority over her person and property) and it will refuse to force one free agent to minister to the choices of another. But it will be indifferent towards the circumstances in which the agent acts and the reasons for action that she has, for it will regard these as subjective and contingent features of her situation that are unconnected with her freedom and have no public significance.

In the case of the sealed bond that has been paid, the debtor wants to say that when he sealed the bond and waived his right to contest the terms by extrinsic evidence, he did not mean that he would not contest the terms if he paid the debt and forgot to cancel it. The debtor wants to say that when he paid the debt, he intended that payment as a fulfilment of his debt obligation and not as a unilateral benefit conferred on the creditor. But a body of law concerned with holding people responsible for their freely chosen actions and agreements, a body of law concerned with whether a choice was free but not with why the choice was made, will have no remedy for the debtor in this case. The debtor chose, in exchange for a loan, to waive his right to contest the terms of the bond. Moreover, the loan was made on condition that its terms would not be contested by extrinsic evidence. James Penner is thus right to say that the one who seeks to enforce the sealed bond may thunder out passages from Kant’s Doctrine of Right —not, however, because ‘a rule is a rule’, 48 but because the doctrine is entirely consistent with freedom conceived as the capacity for undetermined choice and with private law conceived as a system ordered to respect for that capacity.

Perhaps this way of thinking about the significance of the sealed bond will sound familiar. Other common law doctrines reflect the same normative foundation and several contributions to this collection gesture towards it. 49 Consider a mistaken payment. A, mistakenly thinking that she owes B a debt, deposits money into B’s bank account. As Klimchuk notes, the common law asks only whether the transfer was voluntary, not whether the transfer fulfilled the purpose it was intended to fulfil. 50 From the common law’s perspective, the money belongs to B. Consider, too, the case of a mistaken assumption about the quality of a thing contracted for. A, mistakenly thinking that an apartment is suitable for habitation, enters a contract to lease an apartment that will not have water for 12 hours of the day. 51 The common law asks only whether the property is a different kind of thing than what was bargained for. It is indifferent as to whether the property will serve the purpose it was intended to serve and will hold A to her bargain. 52 Or consider a contract whose terms are heavily skewed in favour of the stronger of the two contracting parties, with devastating consequences for the welfare of the weaker party. The common law asks only whether there was a quid pro quo and whether the exchange was voluntary. It does not ask whether the choice was made under circumstances of ignorance or desperation, or whether the choice will be disastrous for the weaker party’s well-being. Consider, finally, the common law’s response to conflicts between the owner of an object and someone who ‘purchases’ the object from a thief. This response reflects the same commitment to free choice, only here the commitment necessitates a refusal to attribute legal significance to an involuntary transaction. As Nair and Samet suggest, the common law’s nemo dat rule reflects the basic idea that the property owner can part with her property only by her own free choice; accordingly, the owner retains title to property despite its theft and subsequent sale, and a purported purchaser acquires nothing from the thief who had nothing to sell. 53

The rule that a sealed bond is incontrovertible evidence of a debt illuminates the common law’s conception of freedom, but it also illuminates the limits of that conception. A law that refuses to hear evidence of payment and enforces the already-paid bond uses its coercive power to force the debtor to confer a unilateral benefit on the creditor. Thus, the rule that enforces the terms of a voluntary agreement out of respect for the parties’ equal free agency becomes, in the particular case, the instrument through which one party makes the other a tool of his purposes. Of course, from the perspective of the bare freedom to choose, the debtor is not forced to do anything he did not freely agree to do. Yet this shows that it is possible for one to turn the other into a tool of his purposes without coercing his choice. It shows that a transaction, though formally bilateral, may nevertheless unilaterally subordinate one party to the purposes of another. The common law does not see this, precisely because it is indifferent to the purposes a choice is intended to realise.

The subordination of the debtor to the creditor is apparent only if we move from a conception of freedom as choice to a conception of freedom as autonomy, as living a life that is expressive of a self-chosen scheme of purposes, values and commitments. As Simone Degeling recognises in her contribution to this volume, this is equity’s conception of freedom. 54 Understanding freedom as autonomy rather than as the bare capacity for choice, equity moves beyond the common law’s norm of respectful non-interference with a free agent’s person or property. Equity is attuned to the moral significance of intentions and purposes, and the ways they can be frustrated in action and in particular circumstances. That is why equity recognises entitlements that are non-proprietary. Equity sees that the debtor’s choice in paying the debt without cancelling the bond, though free, nevertheless fails as an expression of the debtor’s purposes, for the debtor did not intend to confer a unilateral benefit on the creditor. Equity responds by hearing evidence of payment and refusing to allow the creditor to recover the debt a second time. 55

We can see the concern for purposes and intentions that I have just described in other equitable doctrines as well. In the case of the mistaken payment, the law of unjust enrichment (which is equitable in origin 56 ) attends to the mistaken party’s purposes and reasonable expectations, recognises the transaction as one-sided and requires the recipient of the mistaken payment to make restitution. 57 Where there is a fundamental mistaken assumption about the quality of the thing contracted for so that the contract fails as an expression of the mistaken party’s purposes, equity sets the contract aside. 58 When a disastrous bargain is negotiated under conditions of unequal bargaining power, equity recognises that a voluntary agreement may nevertheless be exploitative and refuses to enforce it. 59 In all these cases, equity asks whether the choice was not merely free, but autonomous, that is, whether it was a choice expressive of the agent’s purposes. In so doing, equity asks also whether the resulting transaction is substantively, and not only formally, two-sided.

I think we can see the same idea at work in the trust. In an essay written in 1908, Professor Ames wrote:

The spectacle of one retaining for himself a legal title, which he had received on the faith that he would hold it for the benefit of another, was so shocking to the sense of natural justice that the chancellor at length compelled the faithless legal owner to perform his agreement. 60

In other words, the settlor transferred title to the trustee on the shared understanding that the trustee was to use the property for the beneficiary’s benefit. To allow the trustee to disregard that understanding results in a transfer of property that misfires as an expression of the settlor’s purpose, a purpose known to the trustee, and allows the trustee to extract from the settlor an unintended and unpaid-for benefit. 61 Equity thus holds the trustee to the purpose for which he received the legal title. 62

Of course, this does not explain why the common law refused to recognise the trust. Must we say that the common law was just bad law or can we provide a conceptual explanation for this refusal? I think we can. The common law conceives the relationship between a person and her property as a relationship of sovereignty; to be a property owner is to be the person entitled to make choices about the property, about how it will be used and the terms on which it will be alienated. 63 The separation of ownership from the right to choose how the property is to be used is thus (like the separation of ownership from the right of alienation) unintelligible from the common law’s point of view; at common law, ownership is (among other things) the right to choose the uses to which the property will be put. 64 The common law saw in the settlor’s transfer of title a voluntary transfer of ownership and so treated the trustee as the property’s unfettered legal owner.

I have thus far argued that respect for free agency conceived as undetermined choice generates a set of doctrines that are necessarily indifferent to the context of choice, to intentions and to reasons for action. But this indifference may threaten the very freedom it was supposed to vindicate. In the doctrines we have been considering, the common law’s blindness to the context of choice allows one to use the law to force the other to serve her purposes. The need for an equitable intervention that attends to the way a voluntary choice may misfire as an expression of the agent’s purposes is thus a conceptual need. It is a need generated by the common law’s own conception of freedom and is necessary to vindicate the common law’s own commitment to the idea that no free agent may be subordinated to another.

However, there remains the question of whether or not the common law could have reformed itself. In other words, would anything be lost if the common law simply adopted equity’s conception of human freedom as autonomy and concerned itself not only with whether a choice was free, but also with whether it was autonomous? Here, I will briefly suggest why we might think that the answer is yes. First, we might think that although human beings may have powerful impulses and face desperate circumstances, although they may be frequently mistaken or subject to false consciousness, they are nevertheless dignified agents who choose what they will do, not passive victims pushed around by external forces. If this expresses an important truth (even though not the whole truth) about the nature of human beings, then there is reason for a body of law ordered to respect for the agent conceived as free in this sense. The submersion of common law in equity, we might say, would sacrifice respect for the sake of concern.

Secondly, freedom conceived as undetermined choice, in contrast to freedom conceived as a life reflecting autonomous choices, is not an achievement or an excellence, but an innate quality of human beings. It is a thin and undemanding conception of freedom, identically present in all human beings regardless of ability or virtue. For this conception of freedom, each human being is the equal of every other; accordingly, no one can legitimately be treated as an instrument ministering to another’s needs or purposes, however urgent or praiseworthy. We preserve the thin, undemanding conception of freedom and the equality of persons it generates with a body of law ordered to respect for this freedom alone. The thinness of its conception of freedom, we have seen, is the common law’s deficiency; but it is also its value. The common law’s deficiency is thus conceptual rather than contingent in two senses: (i) it is generated by the common law’s own conception of freedom; and (ii) it cannot be remedied—at least not without loss—by the common law itself.

Because equity refers to a diverse body of doctrines that seem attentive to a host of different problems, the theories of equity’s normative foundation found in this collection struggle for broad explanatory power. It is implausible, for example, to suggest that the equitable doctrines of specific performance and mistaken assumptions in contract are about restraining sticklers or opportunists. Certainly, equitable discovery (allowing parties to a lawsuit to obtain evidence in the opponent’s possession) cannot be explained in these terms. Katz’s account of equity as creating pathways to legal rights cannot explain doctrines that, like promissory estoppel and unconscionability, provide the claimant with no positive contractual rights. Fox-Decent’s account of equity’s core mission as regulating powers held for the benefit of another 65 cannot explain a range of doctrines—promissory estoppel, unconscionability and undue influence, for example—governing situations in which one has power over another but does not hold power for another; nor can it explain doctrines that, like specific performance and rescission for innocent misrepresentations and mistaken assumptions, do not seem to be about power relations at all. 66 It is perhaps no wonder that Lionel Smith concludes that it is impossible to posit a single normative idea that explains all of equity. 67

And yet, if there is something distinctive about equity, should we not find it wherever we find equity? If equity has a unique philosophical foundation, should that philosophy not glimmer in each equitable intervention? To give up on the possibility of a ‘single bright thread’ 68 that connects the equitable doctrines is to give up on the possibility of equity’s conceptual distinctiveness.

Thus far, I have set out a theory that draws a connection between the equitable doctrines that are concerned with the way a voluntary action might fail as an expression of the agent’s purposes. I have suggested that this concern for the agent’s purposes explains equity’s willingness to hear evidence of payment of a sealed debt-bond and lies at the foundation of doctrines such as unjust enrichment, equitable mistake, unconscionability and the trust. I think we can see the connection between this concern for purposes and the concern for reliance, reasonable expectations and the integrity of life plans that we find in other equitable doctrines, such as promissory and proprietary estoppel. They are connected through the idea of freedom conceived as autonomy. Life plans are the way human beings shape autonomous lives, lives that express a thought-out scheme of self-chosen commitments, and limit the imprint of chance and impulse on the shape their lives take. Such plans depend on the ability to rely on what others say and to form reasonable expectations in light of others’ actions; equity’s estoppel doctrines are attentive to this dependency. Equity’s attention to the normative significance of reasonable expectations may also explain why the terms of a trust are enforceable not only by the settlor, but by the beneficiary as well. Moreover, we see concern for the integrity of life plans in equity’s willingness to enforce a restrictive covenant—a plan for the character of one’s neighbourhood—against the one who purchased the servient property with notice of the covenant. The equitable doctrines of specific performance and relief against forfeiture recognise the way material things—especially houses—may become bound up with life plans such that their loss constitutes not just a disappointment, but a setback to the individual’s autonomy. 69

Of course, it is not easy to see the connection between all this and, for example, the equitable doctrine of discovery. But this collection of essays is entitled Philosophical Foundations of Equity , and so it seems worth pointing out that there was a philosopher who saw the connection. Hegel argued that autonomy entails not only a life expressive of self-chosen purposes and goals, but also a life subject only to laws one could impose on oneself. 70 Law’s self-imposability, I suggest, explains equity’s doctrine of discovery. Equitable discovery, as originally understood, allowed the plaintiff to inspect documents and ask questions of the opposing side in order to obtain from the defendant facts that were material to the plaintiff’s case. 71 We should not be surprised that the common law historically had no such doctrine, for discovery allows A to compel B to speak and grant access to documents that are B’s property for A’s benefit. Yet, without discovery, the losing party will see in the dispute’s outcome not the reasoned determination of the parties’ rights, but the reflection of her contingent circumstances, of the chance that the opposing party is in possession of facts that she is not. From a point of view concerned with human autonomy, and so with whether or not the outcome of a legal dispute is one that a reasonable person could impose on herself, discovery is a necessary part of due process.

So long as equity’s normative foundation is conceived in narrow terms—in terms of stickler behaviour, opportunism, pathway problems or other-regarding powers—equity theory will always be embarrassed by doctrines that do not fit. But if equity’s normative foundation is conceived broadly as a commitment to human autonomy, then we should expect to find a diverse set of equitable doctrines that attend to the various ways in which autonomy can be undermined: by action that misfires as an expression of intention; by others’ indifference towards reasonable expectations and the integrity of life plans; by legal judgments that appear as the external imposition of force rather than self-imposable determinations of the parties’ rights. If we describe equity’s normative foundation with the appropriate level of generality—specific enough to distinguish equity from the common law (‘justice’ or ‘fairness’ will not do), but general enough to capture the range of its interventions—we can begin to see the bright thread that runs through the equitable doctrines and that marks their conceptual difference from the common law.

I have argued that Philosophical Foundations of Equity contains within it a deep sceptical challenge to its own project. A number of essays in the collection argue, explicitly or implicitly, that equity simply responded to law that was bad. This claim, if true, renders the hypothesis that equity has a distinctive philosophical foundation implausible. It also makes equity a contingent feature of our legal system, one that should fade away as the common law recognises its own errors and reforms itself. The other, less sceptical, essays in this collection, though full of rich insights and important guidance for thinking about equity, do not answer the challenge, for they fail to make a case for equity’s conceptual distinctiveness from the common law. Drawing on the insights and guidance that can be found in Philosophical Foundations of Equity , I have tried to meet the sceptical challenge by showing the necessary and conceptually distinctive contributions that law and equity make to our legal system. Of course, a full defence of this account is beyond the scope of this review article. My main aims have been to show the form that a theory of equity’s distinctiveness must take and to suggest that a theory built upon the distinction between freedom conceived as free choice and freedom conceived as autonomy has the requisite form.

FW Maitland, Equity, Also, the Forms of Action at Common Law: Two Courses of Lectures (CUP 1909) 1.

Charlie Webb, ‘Discretionary Justice’ in Philosophical Foundations 13.

Paul Miller, ‘Equity as Supplemental Law’ in Philosophical Foundations 110.

Webb (n 2) 13.

James E Penner, ‘Equity, Justice and Conscience: Suitors Behaving Badly?’ in Philosophical Foundations 53.

Aristotle, Nichomachean Ethics , V.10, 1137b13–27.

Emily Sherwin, ‘Equitable Correction of Law’ in Philosophical Foundations 250.

Andrew Gold, ‘Equity and the Right to Do Wrong’ in Philosophical Foundations 73.

Samuel L Bray, ‘Form and Substance in the Fusion of Law and Equity’ in Philosophical Foundations 240.

Henry E Smith, ‘Fusion of Law and Confusion of Equity’ in Philosophical Foundations 212.

As described and discussed in James Edelman, ‘The Equity of the Statute’ in Philosophical Foundations 354–7.

Teis v Town of Ancaste r (1997) 35 OR (3d) 216, 152 DLR (4th) 304 (CA).

Lundrigans Ltd v Prosper (1981) 38 Nfld & PEIR 10 (NFCA).

Johnston Bros v Rogers Bros (1899) 30 OR 150 (Div Ct).

Harty v Gooderham (1871) 31 UCQB 18.

Morgan v Griffith (1871) LR 6 Exch 70.

Webb (n 2) 26.

As Paul Miller argues, equity generates principles and rules that ‘operate generally, prospectively, and in a way that is typically invariant to context’. See Miller (n 3) 93. Similarly, Lionel Smith notes that many of the rules of the law of trusts are ‘non-discretionary, clear, and hard-edged’ in ‘Equity Is Not a Single Thing’ in Philosophical Foundations 145.

Smith (n 12) 211.

Miller (n 3) 107–8.

Aristotle, Nichomachean Ethics V.10, 1137b28–1138a1.

Dennis Klimchuk, ‘Aristotle at the Foundations of Equity’ in Philosophical Foundations 39.

Henry Smith and John Goldberg have argued that because nuisance law involves the adjustment of conflicting rights, it performs an equitable function. See Henry Smith and John Goldberg, ‘Wrongful Fusion: Equity and Tort’ in John CP Goldberg, Henry E Smith and PG Turner (eds), Equity and Law: Fusion and Fission (CUP 2019) 315.

This broad understanding of equity’s distinctive character sweeps in not only the law of nuisance and the law of negligence (which adjusts the conflicting rights to liberty and security), but the whole of private law, which seeks to reconcile the freedom of each with the freedom of all. Smith and Goldberg also treat exceptions to general rules as distinctively equitable, but there is no reason to think of exceptions as foreign to the common law, as the example in the next paragraph illustrates.

Felthouse v Bindley (1862) 11 CB NS 869.

Lucy v Mouflet (1860) 5 H & N 229.

Klimchuk (n 25) 43.

Ben McFarlane and Robert Stevens, ‘What’s Special about Equity? Rights about Rights’ in Philosophical Foundations 191.

Here I use the word ‘proprietary’ to describe the relation between an individual and her own body simply to convey the idea that her body is hers; I do not mean to suggest that the relation between self and body is the same relation as between self and external thing.

McFarlane and Stevens (n 32) 207.

John CP Goldberg and Benjamin C Zipursky, ‘From Riggs v Palmer to Shelley v Kramer : Judicial Power and the Law-Equity Distinction’ in Philosophical Foundations 292.

Larissa Katz, ‘Pathways to Legal Rights’ in Philosophical Foundations 170.

ibid 180–1.

[1980] 2 SCR 834.

Webb (n 2) 31.

Penner (n 7) 61.

JH Baker refers to this as the ‘stock example’ of the way the common law could work an injustice in An Introduction to English Legal History (5th edn, OUP 2019) 110.

See eg Penner (n 7) 53.

For the view that equity acts as a court of conscience, see Aruna Nair and Irit Samet, ‘What Can Equity’s Darling Tell Us About Equity?’ in Philosophical Foundations 264.

For an account of equity in terms of interpersonal morality, see Gold (n 10).

John H Wigmore, ‘A Brief History of the Parol Evidence Rule’ (1904) 4 Colum L Rev 338, 342.

ibid 342–3, 347.

Penner (n 7) 69.

Evan Fox-Decent writes: ‘I assume a rights-based conception of the common law of tort, contract, and property, a conception that finds its grounding in an assumption of equal formal freedom.’ He also notes that there are ‘important practical interests to which contract and tort doctrine are in practice blind’. See Evan Fox-Decent, ‘The Constitution of Equity’ in Philosophical Foundations 142. As I note in this paragraph, Klimchuk recognises that this idea is at work in the common law’s approach to the mistaken payment. See Klimchuk (n 25) 46. Penner, following Arthur Ripstein, suggests that the wrongs recognised by the common law involve ‘illicit interference with … others’ means’ and thus protect the individual’s independence from the choices of others. See Penner (n 7) 65, 70. Lionel Smith notes that at common law, a person’s reasons for acting are ‘almost always immaterial.’ See Smith (n 21) 148. For a full account of the common law’s intelligibility in terms of this conception of freedom, see Alan Brudner, The Unity of the Common Law (2nd edn, OUP 2013).

Klimchuk (n 25) 46.

Simmons v Evans 185 Tenn 282.

Bell v Lever Brothers [1932] AC 161 (HL).

Nair and Samet (n 44) 266, 269.

Simone Degeling, ‘Some Varieties of Consent in Equity: Enhancing and Protecting Autonomy?’ in Philosophical Foundations 315. For a full account of this understanding of equity’s philosophical foundation, see Brudner (n 49).

As Lionel Smith points out, this refusal took the form of requiring the creditor to hand over the deed and cease his proceeding against the debtor at common law. See Smith (n 21) 156.

Moses v Macferlan (1760) 2 Burr 1008, 1009.

For an elaboration of this understanding of unjust enrichment, see Jennifer Nadler, ‘What Right Does Unjust Enrichment Law Protect?’ (2008) 28 OJLS 245.

Solle v Butcher [1950] 1 KB 67 (CA). Of course, the English Court of Appeal overruled Solle v Butcher in Great Peace Shipping v Tsavirilus Salvage [2002] EWCA Civ 1407, [2003] QB 679 and thus denied that there is a separate equitable doctrine of mistaken assumptions. In Canada, Solle v Butcher remains the law. See Miller Paving Ltd v B Gottardo Construction Ltd 2007 ONCA 422, 86 OR (3d) 161, para 26. For criticism of the rejection of Solle v Butcher in The Great Peace , see Jennifer Nadler, ‘A Theory of Mistaken Assumptions in Contract Law’ (2021) 71 UTLJ 32.

Lloyd’s Bank Ltd v Bundy [1974] EWCA 8. As Simone Degeling argues, unconscionability allows the court to consider the circumstances surrounding the claimant’s consent to the transaction. See Degeling (n 54) 326.

James Barr Ames, ‘The Origin of Uses and Trusts’ (1908) 21 Harv L Rev 261, 274.

As Lionel Smith points out in his chapter, the use, now known as the trust, was originally conceived as an arrangement whereby the transferee was obliged to hold property for the benefit of the original transferor while he lived and then according to his instructions after his death. See Smith (n 21) 152. Below I offer an explanation as to why the trust is enforceable not only by the original transferor, but also by a trust beneficiary who is not the original transferor.

Matthew Harding also notices the special role that purposes play in equitable doctrines. See Matthew Harding, ‘Equity and Institutions’ in Philosophical Foundations 335, 336. But whereas Harding argues that what is distinctive about equitable institutions is that they are oriented towards certain purposes, I am arguing that what is distinctive about equity in contrast to the law is its interest in the purpose of the transferor and that this interest in purpose is connected to equity’s conception of freedom.

James Penner writes that the owner is ‘the only person who has the right to determine the use of the property’ in The Idea of Property in Law (OUP 2000) 101; Larissa Katz argues that a property owner has the exclusive agenda-setting authority over the property in question in ‘Exclusion and Exclusivity in Property Law’ (2008) 58 UTLJ 275, 278. Arthur Ripstein writes that ‘the nub of a property right is that the owner rather than others gets to determine how the thing will be used’. See Arthur Ripstein, ‘Possession and Use’ in James Penner and Henry Smith (eds), Philosophical Foundations of Property Law (OUP 2013) 160.

The leasehold estate is not a counterexample. The choice to set up a leasehold estate is a choice about the use to which the property is to be put. Moreover, because ownership at common law entails the right to choose how the property will be used, a leasehold estate is necessarily of fixed duration. Ownership cannot be permanently separated from the right to determine the use of the property.

Fox-Decent (n 49) 117.

Fox-Decent says that equity can be divided into an anti-opportunist domain and an other-regarding power domain, but this does not do much to solve the explanatory problem. Specific performance, rescission for innocent misrepresentation, rescission for mistaken assumptions and discovery do not fit into either category. Moreover, if the Supreme Court of Canada’s recent decision in Uber Technologies v Heller 447 DLR (4th) 179, 2020 SCC 16 is correct, and I think it is, deliberate exploitation is not a requirement of unconscionability, and unconscionability is therefore also not about either opportunism or abuse of a power held for another.

Smith (n 21) 146.

Frank Kitto’s foreword to the first edition of Meagher, Gummow & Lehane , cited in Penner (n 7) 57.

Evan Fox-Decent makes the important point that, in the case of equitable relief against forfeiture, we need to explain why the creditor bears the burden of protecting the debtor’s interest in his home. See Fox-Decent (n 49) 133. Because equity attends to the way the property figures in the lives of both the creditor and debtor, it can see not only the importance of the home or property in the life of the debtor, but also that the creditor’s interest in the property is simply a security interest. Therefore, so long as the creditor is paid—a requirement of equitable relief—he has received what he bargained for. It is thus not the creditor who bears the burden of showing concern for the debtor’s autonomy; it is the court.

GWF Hegel, The Philosophy of Right (TM Knox tr, OUP 1967) para 132.

Patricia I McMahon, ‘Rediscovering the Equitable Origins of Discovery: The Blending of Law and Equity Prior to Fusion’ in Goldberg, Smith and Turner (n 26) 280.

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ESSAY ON THE DEVELOPMENT OF EQUITY WITH COMMON LAW

• By Dr. Charles Omole
• In Viewpoints

“Equity had come not to destroy the law, but to fulfil it”. Frederic William Maitland Lectures on Equity: The Origin of Equity This quote by Maitland represented his verdict on the tension that customarily has been seen to exist between Equity and Common Law and whether Equity evolved out of necessity to perpetuate the smooth operations of the common Law for public good or if Equity came into existence purely as a challenge to the authority and monopoly of the common law to dispense justice. The universality of the common law became problematic in the early centuries due to its creation of laws common to all. This means making rules without exceptions and the strict adherence to old legal precedents despite changing societal landscape. There was also perceived incidents of jury intimidations in common law courts that had the potential to bring the justice system into disrepute. So came equity to the rescue. The word Equity means fairness or being just; but in legal terms it can be said to be the rules developed to mitigate the severity or constraints of the common law. Equity developed alongside the common law as a separate legal authority administered by the Court of Chancery. The common law was seen as deficient in many ways and many went to the King for redress after common law verdicts that were considered unjust or unfair. With massive increase in such petitions to the King, the Chancellor (usually a Clergy) was delegated by the King to oversee these petitions. This gradually developed into the Court of Equity. At the time, the common law had many deficiencies. Firstly, the writ system made any new claim possible only if it is based on an existing writ. And if none exists, then the case would normally not proceed. This became a big problem as many could not even initiate their petition in the common law courts. Also, there was limitation in the kind of remedies offered by the common law courts. Damages were the dominant civil remedy available, but this did not satisfy the need for justice by many litigants who would have preferred an injunction or order for specific performance. In addition, the common law courts failed to adequately recognise certain types of rights, such as beneficial owners in a Trust. The use of the Court of Equity (also known as Court of Chancery) to resolve Trust related matters became very popular. With these deficiencies; there were growing number of unhappy citizens who petitioned the king for justice. These discretionary verdicts by the King’s court (and later the Court of Chancery); gave birth to equitable remedies, thus establishing equity as a doctrine in English legal landscape. In its early days; the Chancellors decided cases without much reference to previously written verdicts. After all, the Chancellors were expected to decide cases based on morality, fairness and good conscience. In the late 16th and early 17th century, more non-ecclesiastical Chancellors began to emerge. Also, established rules were beginning to be introduced along with reports and procedural guidelines. This started the shaping of the operations of the court of Chancery in ways similar to the common law courts. There were concern that two parallel legal systems have developed in the country; with its attendant conflict of jurisdiction and both vying for superiority. To address this confusion; Then came the Judicature Acts of 1873 and 1875 (JA). The 1873 JA specifically stated that in case there is conflict between Equity and Common Law rules; Equity should prevail. The JA also got rid of the old separate courts of common law and equity and in its place established the High Court and the Court of Appeal to adjudicate over both common law and equity matters. The JA fused the administration of the previous two separate courts. And in practice, it also removed the need for plaintiffs to initiate multiple cases in separate courts on the same matter. In essence, the JA also fused the jurisdiction of equity and common law, although the principles of each were still distinct from each other in many matters. With the development and increased use of ‘Trusts’ as a vehicle for asset management by the Knights going to war on behalf of the King; The need for equitable principles was undeniable to many legal observers, due to the limitations of the common law in this crucial area. And in more recent times, equity has also influenced the case law on mortgages; thanks to the many equitable maxims. In his Lectures on Equity series; Frederic William Maitland (FWM) noted in his first lecture that “…I think we may say that had there been no Chancery, the old courts would have discovered some methods of enforcing these fiduciary obligations” This affirmed the necessity of the rules and principles embodied in Equity. Maitland however acknowledged that any solution based on the common law would have been clumsy and inadequate to fully adjudicate on these matters. To me, this confirms that ‘Equitable Principles and Rules’ were a child of necessity. And in his final comment in the first lecture of his Lectures on Equity series FWM glibly dismissed the common law competence, when he noted that “a system which sends every question of fact to a jury is not competent to deal adequately with fiduciary relationships”. This was demonstrated for example in the famous case of Walsh v Lonsdale. And more recently in Patel v Ali. In this case equity stepped in to deliver justice where the basic legal facts would have achieved an unjust outcome. So, over time, the JA inspired (together with the body of rules of the court made by judges); the creation of a Code of Civil Procedure which sought to combine the best of both common law and equity systems. This reduced significantly any obvious perception of conflict between the two systems. ‘Equity follows the law’ is a common maxim in equity jurisprudence. This means that equity follows all the dictates of the common law and will only step in if after all have been done, something was still needed to satisfy justness and equity. This is the basis of the quote by Maitland that “Equity had come not to destroy the law, but to fulfil it”. So Equity can be said to complement the law. And with the fusion of the courts by the JA, it became possible to obtain both legal and equitable remedies from the same court. Hence equity has become like an appendix to common law intended to achieve fairness and justice (after all the rules of common law has been applied and fulfilled). So equity can be said to smoothen the rough edges of the common law. On this basis I will agree with Maitland’s quote that “Equity had come not to destroy the law, but to fulfil it”. In fact equity usually express its superiority at coming to just outcome in cases where damages will be insufficient to resolve matters; as in the case Inwards v Baker [1965] 2 Q.B. 29. But “Trust” as a concept has been the most recognisable invention of equity. For instance; the common law considers Trustee ‘A’ to be the legal owner of Trust X set up by the Settlor. That is as far as common law goes. While Equity fully agrees with the common law, it goes further by recognising the interest of ‘B’ as the beneficiary of the trust and that A owns and holds X for the benefit of B. So Equity cannot really be said to be in conflict with the law. Equity agrees with the law; it simply ensures fairness and equitable justice by recognising the beneficial owner as well. So equity did not destroy the law in this instance; but fulfilled it. To further support his thesis that “Equity had come not to destroy the law, but to fulfil it”; Maitland argued that Equity is not a self-sufficient system as it cannot function without the common law. But common law can function without equity, albeit imperfect and will deliver unjust outcomes in many cases. So, Equity needs the common law to operate and survive. Therefore, equity cannot destroy the law, but needs the law. Maitland encapsulated his position on this in the second lecture in his series when he stated emphatically that “Equity without common law would have been a castle in the air; an impossibility”. There are many who argue that the fusion argument as a result of the JA is a distraction. They argue that equity and common law are now inextricably one body of law to be applied by the law court. Others believe that the two systems (though administered by one common court) are still different from each other. In Salt v Cooper, Sir George Jessel MR commented on the overriding consequence of the JA when he said the JA “has been sometimes inaccurately called the fusion of the law and equity; but it is not any fusion, or anything of the kind. It was the vesting in one tribunal the administration of law and equity in every cause, action or dispute which should come before that tribunal”. However in modern times, many judges have commented that the river of equity and law are truly mingled into a single coherent body of law in the United Kingdom. For instance; this sentiment was expressed by Lord Diplock in United Scientific Holdings Ltd v Burnley Borough Council [1978] AC 904 and Lord Denning in Errington v Errington and Woods [1952] 1 KB 290 at 298; when he noted that the Law and Equity have indeed truly merged. In today’s legal landscape, many of the remedies previously considered exclusive to equity such as Specific Performance can be ordered by the court based on common law principles. Such developments have blurred the lines that separated the two systems before the JA. In fact many believe the line no longer exist altogether. So the UK courts can now apply whichever rule best applicable to achieve justice without any dichotomy. Before the JA, Equity was famous for its creativity and flexibility in the delivery of justice. But gradually from the existence of the JA, equity has acquired several of the rigidities of the common law as a result of its usage of precedents, fixed maxims and rules. However, despite the foregoing statement, equity still possesses lots of scope for creativity and flexibility compared to the common law. In Eves v Eves [1975] 1 WLR 1338, Lord Denning famously declared that “Equity is not past the age of Child bearing….one of her latest progeny is a constructive trust of a new model.” While many may argue with this declaration; few will contend with the continued influence of Equity on the legal landscape and it capacity to still innovate. Lawrence, in his book Equity Jurisprudence noted that at first examination; Equity seems to be a dangerous concept as it does not provide the traditional certainty that an enduring rule of law is known for. This he claims could be seen to leave justice to the whims of the judges. But Maine in his piece Ancient Law 50 (1912); stated that Equity anchored on universal principles is sufficient to provide certainty. This position was well captured by Howard L. Oleck in a brilliant 1951 piece for the Fordham Law Review when he noted that: “Equity as a universal moral principle supplies the required certainty by basing its decisions on Principles, rather than on rules which have the defect of undesirable rigidity. As long as these principles are sound, equity is sound. Such principles must be universal, always, and beyond any dispute as to their validity. And the chief principle upon which equity is founded, dearly, is the principle that justice must be done, despite the seeming finality of any rule of law, if that rule actually works an injustice”. Looking ahead; Equity in its self-adaptive best have continued to endure through devise of new equitable principles such as the MAREVA injunction and ANTO PILLAR orders. This self-adaptive characteristics has sometimes been captured by the modern term Unconscionability. Equitable remedies are discretionary even till today; whereas legal remedies are as of right. This makes equitable outcome less fully predictable compared to common law outcomes. Equity’s ability to innovate has always been demonstrated as evident in many cases where the court has been able to refine, adapt and differentiate the application of many long-standing equitable maxims, as it has always done. It may be argued that equity’s focus on individual justice creates a conflict with the common law’s focus on universal justice. For instance, the maxim that ‘equity will not allow a statute to be used as cloak for fraud’ has the result of preventing reliance on statutory and common law if the outcome will be unconscionable. This may be seen as a licence from equity to ignore the common law; Thus delivering individual personal and fair outcomes that can vary from case to case (regardless of similar facts); instead of the universal outcome of the common law. The courts verdict in Gillett v Holt, Campbell v Griffin and BCCI v Akindele is evidence that the court is prepared to rely on Unconscionability as a way of providing equitable relief rather than simply rely on legal rights where there has been unjust conduct. After all, the court of equity was also known as the court of conscience. Lord Browne-Wilkinson affirmed again that equity is conscience-driven when in Westdeutsche v Islington London Borough Council [1996] AC 699, he noted emphatically that “Equity operates on the conscience of the owner of the legal interest. In the case of a trust, the conscience of the legal owner requires him to carry out the purposes for which the property was vested in him (express or implied) or which the law imposes on him by reason of his unconscionable conduct”. Equity therefore is and should be a changing and living legal doctrine, always adapting to avoid the law becoming frozen into inflexible and pernicious set of rules. The first basis of all legal decisions by the courts is still the common law. Equitable doctrines only come into the picture if it will be unconscionable to stay with the common law outcome. Hence Maitland’s assertion that Equity had come not to destroy the law, but to fulfil it” is a valid thesis and I agree with him. BIBLIOGRAPHY 1. Judith Bray, A Student’s Guide to Equity and Trusts 2. Robert Pearce, John Stevens, & Warren Barr, The Law of Trusts and Equitable Obligations, 5th Edition 3. F. W Maitland, Equity: Also The forms of action at Common Law. Two courses of lectures. 4. Module 1, Equity and Trust Hand-out, University of Buckingham, Autumn Term 5. Lord Eldon on “Equity” J. Leg. Hist. (1999), 20(3), 51-74. 6. Fulop, Law and Equity in Revised Judicial System, 73 N. J. L. J. 25 (1949). 7. N. Y. L. J. 22, col. 1 (editorial Jan. 3, 1951); and Pound, Progress of the Law-Equity, 33 HARV. L. Rvv. 420, 432 (1920). 8. Howard L. Oleck, Historical Nature of Equity Jurisprudence, 20 Fordham L. Rev. 23 (1951)

FOOTNOTES  Section 44 of the Law and Equity Act codifies the principle of the Earl of Oxford (1644) case: if rules of equity and law conflict, equity prevails.  Walsh v Lonsdale (1882) 21 Ch D (HC) Patel v Ali (1984) Ch. 283 (HC) (1880) 16 CH. D 544 at 549 ch. 1 (1929) Howard L. Oleck, Historical Nature of Equity Jurisprudence, 20 Fordham L. Rev. 23 (1951) Mareva v International Bulkcarriers [1975] 2 Lloyd’s Rep 509 Anton Piller v Manufacturing Processes Ltd [1976] Ch 55 Dillwyn v Llewelyn (1862) 45 E.R. 1285 [2001] Ch210, (CA). [2001] WLTR 981, CA [200] 4 ALL ER 221, (CA) Westdeutsche v Islington London Borough Council [1996] AC 699 Cardozo in Graf v. Hope Building Corporation, 254 N.Y 1 at 9 (1930)

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Common Law and Equity: The Differences Between The Rules of Tracing

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Differences at Common Law and Equity

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Home » Law and Ethics » COMMON LAW AND EQUITY

COMMON LAW AND EQUITY

The difference between common law and equity comes down to who hears a case and passes judgment on it, as well as the type of action for which such judgment may call. Common law typically refers to laws based on precedence and the rulings of judges who hear a case in a courtroom. Equity, on the other hand, refers to laws that are similarly established by court rulings but deal with judgment and justice through equitable decisions. While proceedings regarding the two are somewhat similar today, in the past they were divided into two different courts.

Both common law and equity stem from the judicial and legal history of England. These terms and methods for justice have found their way into many legal systems with roots in the laws of England, such as the US and other areas that were English colonies. It can be easiest to understand the difference between the two by first understanding what each system is.

Common law refers to laws created and upheld through the rulings of a judge or jury hearing a case. This is also sometimes called case law, and such precedents are quite important in a legal system that relies on common law. Equity, on the other hand, usually refers to judgments that deal with fairness in justice, often stemming from a sense of “natural law.”

While both types of law have roots in English legal traditions, they stem from two separate courts. English common law was established in the legal courts, which were presided over by judges who served as the source and upholders of the law. Equity, on the other hand, came from the Courts of Chancery, which were presided over by the chancellor to the presiding monarch. This essentially evolved from the rights of English citizens to appeal a common law decision to the monarch, who was the final arbiter of justice. A king would often appoint his chancellor to act in his stead.

There was initially a separation, therefore, between the common law and equity courts, though similar cases might be heard in both. In modern legal practice, the two are separated by the way in which the cases are heard and the type of decision that can be handed down. Most cases in common law are heard by a jury, with a judge as arbiter, and decisions can result in punishment or financial restitution.

Equity cases, however, are typically heard only by a judge who passes judgment on the case, which can take the form of action or cessation of action by one party. Someone who steals a computer, for example, might be ordered by a common law court to repay the value of the computer to the wronged party, which would be just but may not be fair. A court of equity, on the other hand, could order the computer be returned to the owner as a more equitable solution to the situation.

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Common Law and Equity Essay.

Gemma Louise Lang – AS law.

In very early times – before King Alfred (849-899), there was no system of justice, which applied to the whole of the country.  The population was not ruled by a single monarch, transport and communications were available to very few and no law books were available, however, the population was very small at this time, therefore meaning it was not required as much as nowadays.

In 1066, William I made changes to the old system, introducing the Curia Regis and appointing judges – common law was first introduced during this time.  The king’s representatives were sent throughout the land to check local administration and hear local cases.

Case were interpreted and customised to suit the whole country.

The Common law however, was not written down immediately, however after a period of time it was written down and later a further development was made and the ruling made by kings, were also written down.  This was a huge development for Common law in the legal system as it gave some sort of guidance with cases.

Henry II also played a major role in the development of the Common law.  Henry II made tours by judges to local villages/shires.  Henry II then divided the country into circuits and circuit judges were introduced.

Initially judges would use local customs to decide cases, yet over a period of time things began to change and the judges would discuss cases with the king at Westminster.

Eventually, the best customs were decided and became uniform, enabling the laws to be the same throughout the country.

The Common Law was based on the writ system, which could cause difficulty, as it was sometimes difficult to find writs, which fitted the exact case.

This is a preview of the whole essay

The Common Law was praised however as time has gone on and people’s circumstances have changed it was noticed that the Common Law was rigid and as a result was unable to satisfy the growing needs of the people.

Equity was first introduced to the legal system by the Court of Chancery.  It has been described as a ‘gloss on the common law’.  It was introduced to fill in gaps of the legal system and make justice fairer.

In the beginning people sent their petitions to the King to be examined, however as pressure grew on the King it was inevitable that a court was opened to deal with the problems.

With the opening of this court it meant the Chancellor was no longer bound by the writ system or technical rules of common law.

The Lord Chancellor could base his decisions on conscience and right.  This caused friction with common law courts and in 1851 the Court of Appeal in Chancery was introduced, however the Judicature Acts 1873-1875 abolished this court and its jurisdiction transferred to the Court of Appeal.

Unlike common law, equity recognised and enforced the rights of the beneficiary – not only as against the trustee but also against any transferee of the legal interest who knew of the interest of the beneficiary.

Common law has changed throughout the years however it still fails to comply with all legal aspects of today’s population it is for this reason that equity was introduced, equity now helps the justice system work more efficiently.

Nowadays, equity is used in many situations, but is mainly used in mortgage and trust problems.

The relevance of equity today is highlighted in the promissory estoppel.  Lord Denning first suggested it in Central London Property v High Tree House LTD, 1947.  Since this case it has been decided that it would be unfair in some situations to allow one party to rely on the strict terms of a contract because they had led the other party to believe that they will not do so.

An equitable principle is used to stop one party using a contract enforcing his rights when he has given his word that he will not.

Nowadays, equity is also used often in conjunction with cases concerning the husband and wife splitting up.

In a case such as the one mentioned the wife would have an equitable interest in the matrimonial home even if it were not owned jointly.  This meant the mother could remain in the property until the children were of 16 years old.  Common law wives also have the same right.

Equitable remedies are also used in employment law.  An example of this is when employees can be prevented from disclosing trade secrets, or an injunction may be granted against a trade union to prevent an unlawful industrial action.

A relevantly recent expansion of equity is Mareva injunctions.  “Mareva Company’s Naviera v International Bulk-Carriers, 1975”.  In this case this is used where there is a =risk that the assets of one of the parties will be removed out of the UK before the case has come to trial.  A Mareva injunction freezes the assets of the parties involved.  This ensures the assets will be available at the end of the case enabling damages to be paid.

Another recent expansion to equity is the Anton Pillars Orders.  This orders the defendant to allow the plaintiff to enter his or her premises and take away documents or materials that may be relevant to the case.  This is valuable in the case of equity as it prevents s the defendants destroying what may be very valuable evidence.

This is highlighted in the case of Anton Pillars KG v Manufacturing Process LTD, 1976.

Even though many remedies have been made through equity the Courts are prepared to extend these remedies.  The principle that they are all discretionary still remains.  

Equity has already seen many changes and new areas of law have been developed, however equity and its laws and constantly reviewed and new areas are still being developed.

More recent attempts to extend equity have been resisted by the house of Lords (Scandinavian Tanker Co AB v Plota Petroleum Ecutorania, 1981), however more and more possible extensions of equity are constantly being brought before the attention of the House of Lords, enabling equity to continue to grow.

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Classroom Q&A

With larry ferlazzo.

In this EdWeek blog, an experiment in knowledge-gathering, Ferlazzo will address readers’ questions on classroom management, ELL instruction, lesson planning, and other issues facing teachers. Send your questions to [email protected]. Read more from this blog.

Equity? Equality? How Educators Can Tell the Difference

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Today’s post is the latest in a series on the difference between equity and equality .

‘Every Student Doesn’t Need the Same Thing’

Karen Baptiste, Ed.D., a senior consultant at McREL International, is a former special education teacher, instructional coach, and director who now works with K–12 schools across the United States to support improved teaching and learning. She is a co-author of The New Classroom Instruction That Works :

It’s common for educators to believe and teach that everyone should be treated fairly and equally. Having been a special education teacher, and being a person of color, I understand the impact on a child’s life when we treat everyone equally.

Equality, in general terms, is the belief that everyone should get the same treatment, the same resources, and the same starting point. That would be OK if our society did not rank race, gender, (dis)ability, religion, etc. Unfortunately, people of color have dealt with racism and oppression for hundreds of years, and they have not had equal treatment, fairness, nor the same starting point. When teachers say they want equality, what they are saying is that they want all of their students to be treated the same and, therefore, do not see or acknowledge the differences among their students.

When an educator says they believe in equality over equity, they overlook their students’ unique characteristics, abilities, and traits that make them who they are and alleviate themselves from the responsibility of having to address their students’ needs. Most people want to avoid discomfort, especially when the topic of race is surfaced. There is fear of getting it wrong or being accused of being a racist, so it’s easier to say “I treat all of my students the same.”

Equity acknowledges and addresses the unique needs of each student, and it is what we need to work toward. Because of my dark skin, and because of my gender, and because of the texture of my hair, and because of the language I speak, I am born into a world where I am too often dismissed and seen as inferior, not just in school but at work, when buying a home, shopping at the grocery store, traveling, and engaging in any part of living life. There is no part of our lives that has gone untouched by racism and/or discrimination. People of color are still fighting today to be seen and heard as an equal, valued member in the world. Until that happens, we can’t talk about equality.

Equity says I see you.

Equity says I want to understand you.

Equity says I accept your Black and brown skin.

Equity says there is nothing wrong with you or your existence in the world.

Equity says I recognize your learning needs and I am willing to learn the best ways to teach you and provide you with the resources that you need to be successful so that you can feel equal in this space.

Every student doesn’t need the same thing. Equality pushes for everyone to get the same thing, while equity is about giving every student what they need to be successful. Let’s set aside the topic of race momentarily and think about the grave outcomes if we treat students with special needs equal to their peers without special needs. What if the expectation during physical education class is to run two laps in a specified time? Students who use a wheelchair cannot realistically meet that expectation. This is why the federal law requires children designated for special education services to have an individualized education program, because their needs are not equal; they do not need equal treatment, they need equitable treatment and resources in order to access a quality education. Now, think about your student in class who needs to use manipulatives during a math lesson while other students can do mental math.

All students learn differently and can meet mastery when equity becomes part of your practice. Some might consider this pedantic when discussing equality and equity, but it’s not. Providing students with the resources they need to be successful provides them with the psychological safety that is sometimes missing in classrooms but gravely needed.

‘Equity Is Not an Initiative’

PJ Caposey is the Illinois Superintendent of the Year and is a best-selling author, having written nine books for various publishers. PJ is a sought after presenter and consultant who has a widely read weekly newsletter available at www.pjcaposey.com :

Sometimes, I think the concept of equity compared to equality is very difficult and complex. Other times, I think it is straightforward and people out of an act of willful ignorance choose not to understand. I work hard to keep a positive mindset, so my intent in this is to provide six practical examples to demonstrate the difference and how it plays out in schools.

• A student’s grandmother is in the hospital, and their attendance suffers, so you modify some assignments to ensure you are measuring their progress toward standards but limiting the volume to best meet the student’s needs. EQUITY
• A student’s grandmother is in the hospital, and their attendance suffers, and you keep them responsible for the exact work everyone else must complete. EQUALITY
• A student struggles to read and has a documented disability, so their tests are read to them. EQUITY
• A student struggles to read and has a documented disability, but you provide zero assistance to them because it would not be fair to the other students. EQUALITY
• A district analyzes their data and creates plans to close achievement gaps by paying special attention to those groups not performing well. EQUITY
• A district analyzes their data and creates improvement plans that are equally applied to all students. EQUALITY
• Based on benchmark assessment results, some students are placed in intervention groupings to support their learning needs. EQUITY
• Despite assessment results, all students receive the exact same instruction throughout the course of the day. EQUALITY
• All students who wish to participate in Advanced Placement courses are allowed to do so despite previous performance if they attend an in-person meeting articulating the demands of the course. EQUITY
• Only students who have a 3.2 grade point average and have had less than five missing assignments per year on average are allowed to participate in Advanced Placement courses without any exceptions. EQUALITY
• Some staff members have advanced degrees in reading so their professional development requirements around the new reading curriculum are altered to acknowledge their expertise. EQUITY
• All staff members are required to attend the same professional development regardless of prior knowledge or expertise. EQUALITY

My point in sharing these very realistic examples of equity versus equality is twofold. I have come to the realization that we “DO” equity far more than some people would elect to realize. Second, even those who are reluctant to embrace the fact that schools should have an equity focus typically want schools to make equitable decisions when it comes to them or their children. From that statement, feel free to extrapolate what you will.

I will leave with one last thought on the topic. Equity is not a goal. Equity is not an initiative. Equity is a mindset and a lens through which we make innumerable decisions every single day. Whenever we consider how we can best serve an individual student or lead an individual staff member by meeting them where they are at and helping them to get where they need to be, we are operating with an equity mindset.

‘Equity Empowers’

A retired teacher and speaker, Denise Fawcett Facey now writes on education issues. Among her books, Can I Be in Your Class focuses on ways to enliven classroom learning:

The words “That’s not fair” have become a virtual children’s anthem. Heard from homes to playgrounds to classrooms, those three words—spoken almost in the cadence of a song—are the outcry of kids everywhere, conveying their frustration over what they perceive as unequal treatment when things don’t go as they expected. Although we tend to ignore that all-too-common outburst, the early sense of justice that underlies it just as often informs adult concepts of equality as well, fostering an expectation that everyone will be treated the same. However, there is a striking difference between appearing to treat everyone equally and ensuring that everyone has the equity offered by an equal opportunity.

In an educational setting, affording everyone an equal chance at success means equity supersedes equality. From differentiation in teaching methods to the hiring of teachers, among other factors, here are four differences between equality and equity:

• Differentiation. Just as we don’t expect all students to wear eyeglasses in the name of equality, we shouldn’t expect all students to learn in the same way, either. Differentiation settles that. Providing what each student needs for optimal learning, it might be as simple as eyeglasses, preferential seating, or extended time for assignments. However, the chance to present mastery in multiple ways or to use books and other resources that are culturally relevant are also means of differentiation. Although the content area is the same for all students, as are the myriad tools available (there’s your equality), each uses the tool that enables that student to achieve success. That’s not only differentiation. It’s equity.
• Admission to gifted classes. While white, able-bodied students of a certain intellectual ability and socioeconomic level generally have an equal opportunity to be admitted to classes for gifted students, admission tends to exclude students of color as well as students with physical disabilities and those of lower socioeconomic levels, all of whom have eligible students among them. Equality makes certain that all schools have classes for gifted students. Equity goes beyond that, seeking to identify gifted students among those underrepresented groups within each school and assuring that they also gain admittance to gifted classes once identified.
• Hiring diverse teachers. It’s easy to point with pride to teachers of color in a district or to teachers who use wheelchairs, believing them to be reflections of equality and diversity. However, how many are there? And where are these teachers placed? Equality merely says there are some of each. Equity provides an equal opportunity for ALL teachers to teach at any school, not simply affording them an interview at the “better” schools with no hope of being hired nor relegating these teachers to schools designated “inner city” or “low achieving.” Equity also ensures that the number of teachers outside the dominant group is at least representative of their numbers in that community.
• A seat at the table. Much like hiring practices, opening a committee or group to people not normally invited is ostensibly equality. After all, this type of equality frequently involves having “one of each kind,” so to speak, with representation from various racial and ethnic groups and possibly from different ability groups as well. However, it’s certainly not equity as the newly invited are expected to be grateful for the invitation, not to be bold enough to participate as equals. Without affording these participants a genuine voice, it’s educational tokenism that solely allows one to be present. Equity, on the other hand, balances power, legitimizing each person’s voice.

Returning to that childhood question of fairness, equity is the true answer for both students and educators. Offering an equal playing field for success, equity empowers, placing everyone on equal footing.

Thanks to Karen, PJ, and Denise for contributing their thoughts!

Today’s post answered this question:

It’s not unusual for districts, schools, and educators to confuse “equality” with “equity.” What are examples, and ways, you would help them understand the difference?

Part One in this series featured responses from Jehan Hakim, Mary Rice-Boothe, Jennifer Cárdenas, and Shaun Nelms.

Consider contributing a question to be answered in a future post. You can send one to me at [email protected] . When you send it in, let me know if I can use your real name if it’s selected or if you’d prefer remaining anonymous and have a pseudonym in mind.

You can also contact me on Twitter at @Larryferlazzo .

Just a reminder; you can subscribe and receive updates from this blog via email . And if you missed any of the highlights from the first 12 years of this blog, you can see a categorized list here .

The opinions expressed in Classroom Q&A With Larry Ferlazzo are strictly those of the author(s) and do not reflect the opinions or endorsement of Editorial Projects in Education, or any of its publications.

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