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Cass R. Sunstein Two Conceptions of Procedural Fairness I. INTRODUCTION THERE ARE TWO CONCEPTIONS OF PROCEDURAL FAIRNESS. THE FIRST places a high premium on the creation and application ofgeneral rules. On this view, public authorities should avoid “balancing tests” or close attention to individual circumstances. They should attempt instead to give guidance to citizens through clear, specific, abstract rules laid down in advance of actual applications (see Fuller, 1964). This approach sees procedural fairness in the similar treatment of the similarly situ­ ated, which is ensured by rule-bound judgments. The second conception emphasizes the value of individualized treatment, highly attentive to the facts of the particular circumstances. On this view, public authorities should stay close to the details of the controversy before them and avoid rigid rules altogether. The prob­ lem with rigid rules is that they are likely to overreach. They tend to produce arbitrariness or unfairness when applied to new or unantici­ pated problems. The conflict between the two conceptions of procedural fair­ ness arises in eveiy area of politics and law.1Often it involves the most fundamental liberties. Of course, familiar understandings of the rule of law prize, as a safeguard of freedom, clear rules laid down in advance; but the American legal system, and the common law in particular, also value particularized decisions and close attention to the details of each case. A central reason is that public authorities often cannot design sensible general rules, because they lack relevant information. Often social research Vol 73 : No 2 : Summer 2 006 619 general rules will be poorly suited to the new circumstances that will be turned up by unanticipated developments. Often rulemakers cannot foresee the circumstances under which their rules will be applied. My goal here is to make some progress in understanding the choice between the two conceptions of procedural fairness. The discus­ sion proceeds in three parts. The first emphasizes a key difference between the two conceptions: rules require legal institutions to do a great deal of work before actual applications arise, while the individu­ ated approach requires such institutions to do a great deal of work in the process of settling controversies.2 This difference helps to explain controversies over the death penalty, affirmative action, and more. The second part explores the reasons that both conceptions have such appeal, emphasizing a range o f qualitatively diverse considerations that tend to lead people to favor one or the other. The third part explores the choice between the two by stressing the importance of three simple factors: the costs of legal decisions, the costs of legal error, and the costs of private planning. An emphasis on these factors has an admittedly reductionist character, and I do not contend that it explains everything. But it does help to explain the choices that sensible legal systems make, and also to show when a charge of procedural unfairness is most likely and most justified. Reflective claims about unfairness, I suggest, are at least implicitly attuned to consequentialist considerations of this kind. II. CONCEPTS AND ILLUSTRATIONS A. Rules and Individuation Those who favor rule-bound judgments focus on the arbitrariness and error that come from the exercise of unbounded discretion: those who favor individualized judgments focus on the arbitrariness and error that come from rigid applications of rules. If this is a large part of the division, then we can readily identify the primary difference between rule-bound judgments and particularized ones. Rule-bound judgments require that lawmakers give all or most o f the content to the law in advance of particular applications. Individualized judgments require 620 social research all or most of the content o f the law to be provided at the point of application. Consider a few examples. A law that requires people to go no more than 65 miles per hour is a rule; a law that requires people to drive “in a safe and prudent manner” calls for a high degree of individu­ alized judgment. If ajudicial decision allows women to choose abortion in the first two trimesters of their pregnancy, a rule is involved. Ifa judi­ cial decision allows women to be free from “undue burdens” on that choice, then individualized judgment...


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