give rise to the problem of near-fraud and exploitation of uncertainty, which call for the
limited intervention of equity.
Equity helps maintain the structures within property called for by the rule of law,
but something similar holds true of the legal system as a whole. The overall architecture
of formal structures and equitable safety valves is replicated on a more macro level, in
part for similar reasons of information cost. The rule-of-law criteria themselves are
formal and can be evaded opportunistically. Evasion of the rule of law criteria is the
most straightforward and thoroughgoing way in which a formal version of the rule of law
is consistent with “bad law.” Prevention of substantive evasion of the rule of law requires
(limited) reference to norms outside the formal law, in a macro version of equity. Just as
moral and information cost theories tend to converge at the level of legal doctrine, so too
formal law and what used to be known as “natural justice” or “natural equity” can be seen
to point in similar directions at the level of the law as a whole.
Information cost considerations shape the law of property consistently with the
rule of law because both property and the rule of law itself respond to information cost
constraints. In the following, by “rule of law” I will start with the thinner and more
formal notions of rule of law and show how they must at least be supplemented with
notions of equity in order to prevent evasion.3 For this reason alone we have a reason to
move one step toward thicker versions of the rule of law that incorporate morality and
legitimacy. Anti-evasion requires the amount of intervention couched in moral terms that
equity supplies.
Part I will show how information cost considerations lead private law, and
property in particular, to exhibit the familiar features of the rule of law. It will also argue
that a less formal safety valve, roughly identified with historical traditions of equity, is
needed in order to protect formal law against evasion by opportunists. Part II will
demonstrate that this micro equity and its functions scale up to the system of law itself:
the rule of law is vulnerable to opportunistic evasion without some ability to invoke
larger moral considerations in at least a limited way. This can be termed “macro equity.”
Part III draws out some implications of the convergence between the information cost
theory and “natural equity.”
I. Property and the Rule of Law
Property exemplifies the virtues and the perils of the rule of law. As I will show,
considerations of information cost call for a high degree of formalism in property law,
compared to contract. The in rem aspect of property in particular has to be
communicated to a large and indefinite audience. However, a subset of that audience can
be expected to take hard-to-foresee kinds of advantage of the system of bright-line rules
by finding loopholes. Such opportunism calls for limited intervention traditionally
associated with courts of equity and embodied in equitable maxims, defenses, and