Submit by Henry Smith
A paper of mine on fairness lengthy within the works (and beneath totally different titles) is now out as Henry E. Smith, Fairness as Meta-Regulation, 130 Yale L.J. 1050 (2021). Right here is the summary:
With the merger of regulation and fairness virtually 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 perform. Fairness and associated elements of the regulation clear up 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 regulation would in any other case produce, whereas main regulation operates irrespective of fairness. Fairness operates on a website of fraud, accident, and mistake, and employs triggers equivalent to dangerous religion and disproportionate hardship to toggle right into a “meta”-mode of extra open-ended scrutiny. This Article gives a theoretical account of how a hybrid regulation, consisting of comparatively easy and normal primary-level regulation and comparatively intense and directed second-order fairness can regulate conduct higher via these specialised modes than would homogeneous regulation alone. The Article exams this principle on the ostensibly most unpromising facets of fairness, the normal equitable maxims, in addition to equitable fraud, defenses, and treatments. Fairness as meta-law sheds mild on how the fusion of regulation and fairness spawned multifactor balancing exams, polarized interpretation, and led to the confusion of fairness with requirements, discretion, purely public regulation, and “mere” treatments. Viewing fairness as meta-law additionally improves on the tradeoff between formalism and contextualism and finally promotes the rule of regulation.
