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John C.P. Goldberg & Henry E. Smith, Wrongful Fusion: Equity and Tort, in Equity and Law: Fusion and Fission (John C.P. Goldberg, Peter Turner & Henry E. Smith eds., 2019).

Abstract: Equity and Tort appear to be strangers. Beyond historically making equitable relief available in some cases, equity did not intervene in tort law to the extent it did in contract and some aspects of property. And yet substantive equity focuses on wrongful conduct and affords persons the opportunity to seek remedies for such conduct through the courts. Are there ‘equitable wrongs’, and, if so, how if at all do they differ from torts? We focus on a particular function loosely associated with historic equity jurisdiction: equity supplements the law where it fails to address problems that are difficult to handle on the same ‘level’ on which they arise. In situations of conflicting rights, party opportunism, and interacting behavior, it is difficult to formulate solutions that do not make reference to the ordinary (primary level) set of rights and rules. Thus, it is often more effective to frame ‘abuse of rights’ in terms of what one can do with rights rather than formulate the right to make it resistant to abuse. We distinguish three scenarios at the intersection of equity and tort: (i) tort law itself contains a second-order element to deal with problems such as coming to the nuisance; (ii) equity solves an inadequacy of tort law, such as by reformulating privity, which is then incorporated into tort law going forward; and (iii) equity maintains a limited but open-ended capacity to counteract inadequacies of tort law, especially involving hard-to-foresee manipulation of rules and conflicts of rights. With the increasing fusion of law and equity, it has been difficult to maintain this second-order equitable function, but nowhere more so than at the equity-tort interface. Many of the interventions of equity, especially into areas of wrongful interference, invite redescription as torts, and have in fact induced courts to recognize new torts, for better and worse. On our account, this reformulation into tort is appropriate only where a problem is amenable to delineation in terms of general rights and fails where a degree of open-endedness is necessary to deal with party opportunism and new types of conflict. We also consider the diffusion of ‘flattened’ equitable notions into primary-level tort law, often in the form of balancing tests, which have in many ways rendered tort less coherent, stable, and law-like than is desirable.