Philosophical Approaches to Equity

This subject is not offered in 2011.

Equity and Trusts or equivalent.

For the purposes of considering requests for Reasonable Adjustments under the Disability Standards for Education (Cwth 2005), and Students Experiencing Academic Disadvantage Policy, academic requirements for this subject are articulated in the Subject Description, Subject Objectives, Generic Skills, and Assessment Requirements of this entry.

The University is dedicated to providing support to those with special requirements. Further details on the disability support scheme can be found at the Disability Liaison Unit website: http://www.services.unimelb.edu.au/disability/.

The traditional approach to equity concentrated on the historical development of doctrines and remedies in the English Court of Chancery. This subject takes a different approach to equity. It aims to reveal the philosophical foundations of equitable doctrines and remedies. What goals and purposes do they serve? Are they justified morally and, if so, how? In seeking answers to such questions, the subject also aims to supply a theoretical framework within which equitable doctrines and remedies may be evaluated and arguments for reform assessed.

Topics to be covered include:

• The nature of equity I: whether the judge exercising equitable jurisdiction plays a role different from that of the judge exercising common law jurisdiction;
• The nature of equity II: whether there is anything philosophically distinct about equity: what, if anything, sets equity apart from contract, tort and unjust enrichment?;
• The nature of the trust and the application of philosophical principles, such as autonomy, charity and distributive justice, to the trust;
• The philosophical foundations of fiduciary relationships and obligations and other equitable doctrines, such as equitable estoppel and the doctrines of undue influence and unconscionable dealing;
• The nature and purposes of equitable remedies;
• The nature and purposes of equitable defences such as delay and good faith purchase for value without notice.

On completion of this subject, students should:

• Have an understanding and knowledge of some of the important philosophical questions and themes underlying and surrounding equitable doctrines and remedies;
• Be able to analyse, and evaluate, equitable doctrines and remedies from a philosophical perspective;
• Have developed an appreciation of the importance of theoretical analysis for any comprehensive understanding of legal rules and principles; and
• Developed further their intellectual curiosity and creativity about the law.

Research essay of 5,000 words (due week 12), 100%.

Printed materials will be available from the Melbourne Law School.

This subject is not available as a breadth subject.

On completion of this subject, students should have developed the following generic skills:

• Attitudes towards knowledge that include valuing truth and openness to new ideas;
• The capacity for close reading and analysis of a range of sources, including primary and secondary legal sources and philosophical literature;
• The capacity for independent thought and reflection;
• The capacity to formulate and present philosophical arguments, and to think conceptually and critically;
• The capacity to articulate knowledge and understanding of complex and theoretical ideas in written and oral form;
• The further enhancement of legal research techniques;
• The ability to engage in interdisciplinary work.