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Kaplow and Shavell on the Substance of Fairness

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  • Richard Craswell

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.

Suggested Citation

  • Richard Craswell, 2003. "Kaplow and Shavell on the Substance of Fairness," The Journal of Legal Studies, University of Chicago Press, vol. 32(1), pages 245-275, January.
    • Handle: RePEc:ucp:jlstud:v:32:y:2003:p:245-275
    DOI: 10.1086/345568
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    References listed on IDEAS

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    1. Bebchuk, Lucian Ayre & Shavell, Steven, 1991. "Information and the Scope of Liability for Breach of Contract: The Rule of Hadley vs. Baxendale," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 7(2), pages 284-312, Fall.
    2. Kaplow, Louis & Shavell, Steven, 1999. "The Conflict between Notions of Fairness and the Pareto Principle," American Law and Economics Review, American Law and Economics Association, vol. 1(1-2), pages 63-77, Fall.
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    Cited by:

    1. Louis Kaplow & Steven Shavell, 2003. "Fairness versus Welfare: Notes on the Pareto Principle, Preferences, and Distributive Justice," The Journal of Legal Studies, University of Chicago Press, vol. 32(1), pages 331-362, January.
    2. Jeong-Yoo Kim, 2006. "Strict liability versus negligence when the injurer's activity involves positive externalities," European Journal of Law and Economics, Springer, vol. 22(1), pages 95-104, July.

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