Equity and Administrative Behaviour: A Commentary

Abstract

Professor Henry Smith argues against judicial exercise of a general ‘fix-it’ equity. He argues that a narrower ‘anti-opportunism’ equity can be seen at work in the processes and remedies and substantive standards of United States administrative law. In a response to his article in this collection of essays, I endorse his caution about ‘broad ex post’ attempts to do justice. I argue that the core of English administrative law developed at common law rather than at equity, that the fiduciary principle developed in Chancery has no general role to play in administrative law, and that Professor Smith’s narrow anti-opportunism version of equity remains in tension with the rule of law.