Article

Question 1

Who wrote the article, “We Do This in Common Law and That in Equity?”

Answer 1

Andrew Burrows

Question 2

What are the three resulting categories of law, according to Burrows, since the fusion of common law and equity?

Answer 2

1. Areas in which common law and equity have truly fused
2. Areas where there are differences in terminology, but which could be remedied “in the stroke of a pen”
3. Areas in which there is a significant difference between equity and common law - primarily civil law proceedings. More substantive action needs to be taken to remedy these differences.

Question 3

What seems to be the primary reasoning driving Burrow’s arguments?

Answer 3

That the law should make sense: “recognizing the importance of coherence in the law and of ‘like cases being treated alike.’”

He is firmly pro-fusion.

I would add that while sensical law seems most important to practicioners, who must deal with it every day, it is important for the law to be sensible to every day folks too. We place emphasis on criminal law needing to be fair in order to maintain faith in the justice system–I think it is just as important, if not more so, for civil law to be fair. Many people many never go to jail, but many more of those people may buy property, get into a dispute about property, etc.

Question 4

What does Burrows find the significance of the labels of common law and equitable law to be?

Answer 4

Mainly historical: we have labeled rules as common law which were administered in common law courts prior to 1873 and rules as equitable to say they were administered in the Court of Chancery prior to 1873.