Publish by Henry Smith
A paper of mine on fairness lengthy within the works (and underneath completely different titles) is now out as Henry E. Smith, Fairness as Meta-Legislation, 130 Yale L.J. 1050 (2021). Right here is the summary:
With the merger of regulation and fairness nearly full, the concept of fairness as a particular a part of our authorized system or a mode of decisionmaking has fallen out of view. This Article argues that a lot of fairness is finest understood as performing an important operate. Fairness and associated elements of the regulation resolve complicated and unsure issues—together with interdependent conduct and misuses of authorized guidelines by opportunists—and achieve this in a attribute vogue: as meta-law. From unconscionability to injunctions, fairness makes reference to, dietary supplements, and typically overrides the end result that regulation would in any other case produce, whereas main regulation operates irrespective of fairness. Fairness operates on a site of fraud, accident, and mistake, and employs triggers similar to unhealthy religion and disproportionate hardship to toggle right into a “meta”-mode of extra open-ended scrutiny. This Article offers a theoretical account of how a hybrid regulation, consisting of comparatively easy and common primary-level regulation and comparatively intense and directed second-order fairness can regulate conduct higher by means of these specialised modes than would homogeneous regulation alone. The Article checks this principle on the ostensibly most unpromising features of fairness, the standard equitable maxims, in addition to equitable fraud, defenses, and cures. Fairness as meta-law sheds mild on how the fusion of regulation and fairness spawned multifactor balancing checks, polarized interpretation, and led to the confusion of fairness with requirements, discretion, purely public regulation, and “mere” cures. Viewing fairness as meta-law additionally improves on the tradeoff between formalism and contextualism and finally promotes the rule of regulation.