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Some Sound and Fury from Kaplow and Shavell

30 Pages Posted: 2 May 2007  

Kimberly Kessler Ferzan

University of Virginia, School of Law

Abstract

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.

Keywords: law and economics, fairness, welfare

Suggested Citation

Ferzan, Kimberly Kessler, Some Sound and Fury from Kaplow and Shavell. Law and Philosophy, Vol. 23, p. 73, 2004. Available at SSRN: https://ssrn.com/abstract=983576

Kimberly Kessler Ferzan (Contact Author)

University of Virginia, School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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