When you must rely on fairness to modify the strict application of the law, identify some jurisprudential maxim that supports you.
A naked appeal to fairness in the face of seemingly contrary authority isn’t likely to succeed. Whenever possible, dress up the appeal with citation of some venerable legal maxim that supports your point. Such maxims are numerous, mostly derived from equity practice. For example:
When the reason for a rule ceases, so should the rule itself.
One must not change his purpose to the injury of another.
He who consents to an act is not wronged by it.
Acquiescence in error takes away the right of objecting to it.
No one can take advantage of his own wrong.
He who takes the benefit must bear the burden.
The law respects form less than substance.
The State of California has codified many of these maxims with case summaries exemplifying their application. Courts in other states are no less familiar with such maxims, and you can almost always find one to support a defensible position.
Inputs: Antonin Scalia
and Bryan Garner
