Some Sound and Fury from Kaplow and Shavell

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In Fairness versus Welfare, Harvard legal economists Louis Kaplow and Steven Shavell argue that legal policy making should be based on social welfare, not fairness. In this review article, I claim that the authors fail to provide arguments for critical assumptions, create problems with fairness theories that do not exist, and most significantly, present an argument at war with itself. In Section I, I aver that Kaplow and Shavell's paradigmatic situation hypotheticals, supposedly convincing the reader that fairness makes everyone worse off, fail at the inception. Kaplow and Shavell simply beg all the important questions. Next, I address their substantive critique of fairness theories, wherein they complain that fairness theories are incomplete and incomprehensible, and demonstrate that the unfortunate structure of their analysis creates the very incompleteness that they criticize. In Section II, I discuss Kaplow and Shavell's attempt to explain away fairness as a proxy for welfare, and show this argument to rest on a non sequitur. In Section III, I demonstrate that, even assuming that fairness is a proxy for welfare, this position cannot be squared with Kaplow and Shavell's accommodation of a taste for fairness. In Section IV, I conclude that despite the passion of the authors, the thoroughness of the research, and the breadth of the discussion, in the end, the book is nothing but sound and fury.


Law and economics, fairness, welfare

Publication Title

Law & Philosophy

Publication Citation

23 L. & Phil. 73 (2004)