277. Louis Kaplow and Steven Shavell, Principles of Fairness versus Human Welfare: On the Evaluation of Legal Policy, 03/2000; subsequently published as "Fairness versus Welfare" in Harvard Law Review, Vol. 114, No. 4, February 2001, 961-1388; and Fairness versus Welfare, (Cambridge, Massachusetts, and London, England: Harvard University Press, 2002), 544pp.
Abstract: Our thesis is that the assessment of a legal policy should depend exclusively on its effects on human welfare, that is, on the well-being of individuals. In particular, no independent evaluative weight should be accorded to notions of fairness, such as corrective justice in tort and desert in punishment. (Concerns about the distribution of income are not, however, subject to our critique.) When the choice of legal rules is influenced by notions of fairness, individuals are often made worse off. Indeed, if the prescriptions of any notion of fairness are followed, it is always possible that everyone will be made worse off. Moreover, when we examine notions of fairness and the literature that advances them, we are unable to identify reasons that, on reflection, justify giving weight to these notions at the expense of individuals' well-being.
Nevertheless, notions of fairness are widely felt to be appealing. We suggest that this appeal can largely be explained by three factors: notions of fairness often correspond to social norms that usefully regulate everyday life; notions of fairness may serve as proxy devices for achieving instrumental objectives; and individuals may have a taste for satisfaction of the notions. However, we explain that none of these factors warrants employing notions of fairness as independent evaluative principles in the assessment of legal policy.
We develop these arguments through consideration of specific conceptions of fairness that are employed in major areas of law: tort, contract, legal procedure, and law enforcement. We also discuss the implications of our analysis for our primary audience, legal academics and other legal policy analysts, and also for government officials, notably legislators, regulators, and judges.
Each chapter of the book is contained in a separate PDF file, listed below. The cover page, abstract, and table of contents, are in the first file. The table of contents is linked to the nine chapters of the book by title and first-level subheadings. To download a chapter, simply click on the underscored text below.
Cover Page, Abstract, and Table of Contents
II. Welfare Economics and Fairness
V. Legal Procedure
VI. Law Enforcement
VII. On The Use of Notions of Fairness and Welfare Economics By Different Types of Actors
VIII. Commments on the Breadth and Soundness of Welfare Economics