Monday, May 7, 2018

Johnson and Oldham on Lord Eldon on Law and Equity

Thanks to an alert from the Oxford University Press, we’ve learned of the on-line publication in the American Journal of Legal History of Law versus Equity–as Reflected in Lord Eldon’s Manuscripts, by Michelle Johnson, a doctoral candidate at the University of Reading, and my Georgetown Law colleague James Oldham:
The received version of Lord Eldon's conception of equity is often extracted from decisions such as Gee v. Pritchard (1818), describing equity as a settled set of fixed principles almost as uniform as those of the Common Law. Yet, as has been noted in recent scholarship, this version does not do justice to Eldon's multi-layered views. This article re-examines Eldon's subtleties by reference to Eldon's manuscripts now held by Georgetown University Law Library. These include Eldon's judicial notebooks and a series of essays styled ‘Lectures’ (likely written while he was acting deputy to the ‘Vinerian Professor of Common Law’ at Oxford). The article demonstrates that the received view is indeed not sufficiently ‘nuanced’ to provide a fully satisfactory explanation of Eldon's approach to equity. Eldon does seem to have been fundamentally conflicted about the dividing line between law and equity. His overall preference for the certainty of positive law perhaps reflects his law-equity ambivalence (an ambivalence mirrored by some of his judicial contemporaries).