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Henry E. Smith, Fusion of Law and Confusion of Equity, in, Philosophical Foundations of the Law of Equity (Dennis Klimchuk, Irit Samet & Henry E. Smith eds., 2020).

Abstract: This chapter argues for viewing equity as a second-order system—law about law, or meta law—whose loss through fusion has created a variety of jurisprudential quandaries. On this view, equity serves as a second-order safety valve particularly suited to problems of great variability and uncertainty—including opportunism, conflicting rights, and multipolar conflicts—and although such problems were not the exclusive preserve or the only focus of equity courts, the former jurisdictional divide did much to highlight the second-order equitable function. The flattening out of this second-order equitable function through fusion of law and equity has intensified numerous jurisprudential controversies—including the debate between formalism and contextualism and the distinction between rules and standards—in contrast to the older, less polarized path of hybrid law-equity. Effacing distinctive second-order equity also leads to extreme views about the supposed death of contract and all-consuming tort. Even the relationship of law and morality tends to be more fraught when equity as meta law is taken off the table.