Submit by Henry Smith
A paper of mine on fairness lengthy within the works (and below totally 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 legislation and fairness virtually full, the thought 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 a significant operate. Fairness and associated elements of the legislation remedy advanced and unsure issues—together with interdependent conduct and misuses of authorized guidelines by opportunists—and accomplish that in a attribute trend: as meta-law. From unconscionability to injunctions, fairness makes reference to, dietary supplements, and generally overrides the outcome that legislation would in any other case produce, whereas major legislation operates regardless of fairness. Fairness operates on a website of fraud, accident, and mistake, and employs triggers corresponding to dangerous 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 legislation, consisting of comparatively easy and common primary-level legislation and comparatively intense and directed second-order fairness can regulate conduct higher via these specialised modes than would homogeneous legislation alone. The Article exams this principle on the ostensibly most unpromising features of fairness, the normal equitable maxims, in addition to equitable fraud, defenses, and cures. Fairness as meta-law sheds gentle on how the fusion of legislation and fairness spawned multifactor balancing exams, polarized interpretation, and led to the confusion of fairness with requirements, discretion, purely public legislation, and “mere” cures. Viewing fairness as meta-law additionally improves on the tradeoff between formalism and contextualism and in the end promotes the rule of legislation.