This Article shall examine the characteristics of the current analytical framework by first examining some harmful effects resulting from the prioritization of fairness: excessive generalization, formalism and superficiality, and materialism. The Article will then examine in detail the Supreme Court's resolution of modern affirmative action issues. The Court has generated confusion and discord by applying simplistic concepts to complex problems and by adhering to the primacy of fairness in a context in which all interested parties claim that fairness favors their result. Finally, this Article will critique the Court's inability to provide a consistent doctrinal basis for discussing affirmative action issues and will propose a framework for the resolution of affirmative action issues based on a societal dedication to implement communal values. Although a vibrant community must frequently redefine and reassess its values, the moral and philosophical traditions of American society provide a foundation for the shared understanding of these values. Such commonality is essential for any group that considers itself a community. Such a communal value system will also restore trust - trust in others and trust in government. The primacy of fairness is, in many ways, the product of a society that has lost faith in trust.
Social Justice and the Myth of Fairness: A Communal Defense of Affirmative Action, 74 Nebraska L. Rev. 569 (1995)