This Article offers and defends a nuanced definition of opportunism in the context of legal decision-making by differentiating between opportunism in the broad sense and the particularized phenomenon of cognizably malignant opportunism. It subsequently proceeds by developing a normative critique of the case for broader invocation of counteropportunistic equitable remedies, alongside a defense of the reliance and gap-filling functions performed by opportunistic actors. Centrally, I challenge the suggestion that the existence of opportunism in private law warrants a revival of the doctrines of ex post equity. I argue, instead, that opportunism serves an important structural purpose where the evolution of ex ante legal rules is concerned, and contend that while equity-oriented moral reasoning might serve to inform the character and construction of such rules, the use of equity as an ex post remedy should generally be rejected by judicial decision makers.
CU Commons Citation
Ehrett, John S.
"Opportunism as Crucible: Rethinking Equity in View of Reliance Interests and Legal Evolution,"
Concordia Law Review: Vol. 1:
1, Article 3.
Available at: https://digitalcommons.csp.edu/clr/vol1/iss1/3