» Fairness as Meta-Regulation New Non-public Regulation

Put up 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 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 a significant operate. Fairness and associated components of the regulation clear up complicated 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 typically overrides the outcome 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 akin to dangerous religion and disproportionate hardship to toggle right into a “meta”-mode of extra open-ended scrutiny. This Article supplies a theoretical account of how a hybrid regulation, consisting of comparatively easy and basic 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 assessments this idea on the ostensibly most unpromising points of fairness, the normal equitable maxims, in addition to equitable fraud, defenses, and treatments. Fairness as meta-law sheds gentle on how the fusion of regulation and fairness spawned multifactor balancing assessments, 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 in the end promotes the rule of regulation.

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