Kaplow and Shavell on the Substance of Fairness

Abstract

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.