Kaplow and Shavell on the Substance of Fairness

Louis Kaplow and Steven Shavell argue that “fairness” should be disregarded when choosing legal rules. One of their arguments, which rests on the Pareto principle, purports to apply to any theory of fairness, whatever its substance. But Kaplow and Shavell also make many other arguments criticizing t...

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Bibliographic Details
Published in:The Journal of legal studies 2003-01, Vol.32 (1), p.245-275
Main Author: Craswell, Richard
Format: Article
Language:English
Subjects:
Civil law
Contracts
Courts
Entitlement programs
Equality
Ethics
Fairness
Judicial process
Justice
Kaplow, Louis
Law
Legal systems
Louis Kaplow
Natural rights
Pareto optimum
Pareto principle
Plaintiffs
Policy making
Political theory
Shavell, Steven
Social welfare
Steven Shavell
Theory
Torts
Trials
Victim compensation
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Summary:Louis Kaplow and Steven Shavell argue that “fairness” should be disregarded when choosing legal rules. One of their arguments, which rests on the Pareto principle, purports to apply to any theory of fairness, whatever its substance. But Kaplow and Shavell also make many other arguments criticizing the substance of particular fairness theories, as those theories have been applied to particular fields of law. This paper argues that this second set of arguments—the ones that focus on the substance of particular fairness theories—represents the more significant part of Kaplow and Shavell's analysis. That is, while the first argument may not succeed in refuting any theory of fairness, regardless of its content, their criticisms based on the substance of particular fairness theories still have considerable force.
ISSN:0047-2530
1537-5366
DOI:10.1086/345568