Here is a paragraph from a soon-to-be printed chapter on the “fairness is not going to” doctrines–doctrines like fairness is not going to enjoin a criminal offense, fairness is not going to enjoin a felony continuing, fairness is not going to punish, fairness is not going to enjoin a libel, and fairness is not going to defend a political proper.
Fairness has at all times been controversial. In america, it was controversial on the Founding, on the time of the labor injunctions, on the time of the civil rights structural injunctions, and now on the time of nationwide injunctions. Exactly due to its extraordinary powers, and its better reliance on discretionary concerns, fairness has tended to be probably the most pro- and probably the most anti-Bickelian a part of the frequent regulation techniques. Fairness is the place American judges are most probably to overshoot, risking blowback from political actors and establishments, and it’s also the place these judges have tended to make use of the available brakes to keep away from overshooting.
If you wish to learn extra, this is the chapter.