Henry E. Smith, Property, Equity, and the Rule of Law, in Private Law and the Rule of Law 224 (Lisa Austin & Dennis Klimchuk eds., 2015).
Abstract: Property law and equity appear to be enemies. The generality and stability of property law stands in some tension with ex post invocations of fairness and morality. This chapter argues that the conflict is overblown, and that equity protects both property and the rule of law against opportunistic evasion. In the face of potential opportunism, equity helps maintain the general, stable structures within property called for by the rule of law. Likewise, the rule-of-law criteria themselves are formal and can be evaded opportunistically. Prevention of substantive evasion of the rule of law requires reference to norms outside the formal law, in a form of macro equity, thus pointing to some limits of formalism. Just as moral and information cost theories tend to converge at the level of legal doctrine, so too formal law and natural justice can be seen to point in similar directions at the level of the law as a whole.