Fairness Versus Welfare.

• Author: Coleman, Jules L.
• Position: Book Review

Fairness Versus Welfare. By Louis Kaplow * & Steven Shavell. ** Cambridge: Harvard University Press, 2002. Pp. 566. $45.00.

Louis Kaplow and Steven Shavell are talented and distinguished legal academics who for the past several years have been working jointly on a massive project in normative law and economics. The project's goal is to answer the question: What are the criteria by which legal policies (rules, standards, decisions, and other authoritative acts) ought to be assessed and proposals calling for their reform to be evaluated? In answering this question, they consider two normative frameworks--one defined by a concern for the impact of policies on human welfare, the other defined by a concern for various principles of fairness. Thus, the title of the book: Fairness Versus Welfare. (1) There is no surprise ending, as from the outset Kaplow and Shavell are clear that they judge welfare the unambiguous winner of the competition.

Previous iterations of the book have been in circulation for some time and available on the Internet. (2) In addition, Kaplow and Shavell have made the rounds of law and economics workshops for several years, (3) taking the opportunity such occasions provide to set out and defend the book's central claims. Beyond that, the book has been the subject of numerous conferences and panels at professional meetings. It is unlikely, therefore, that many intended readers are not already familiar with its claims and the arguments marshaled on their behalf.

Even so, it is useful to distinguish among three groups of potential readers. The first two groups are the representatives of protagonists. On the one side are the deontologists--philosophers and legal theorists committed to the idea that some or other deontic considerations must play an independent role in assessing legal practice as well as calls for its reform. Along with everyone from Plato and Aristotle to Kant, Rawls, and Dworkin, Kaplow and Shavell are kind enough explicitly to include me in this group. This group is their target. As Kaplow and Shavell see it, no argument they could muster might convince the deontologists of the error of their ways, so hopelessly are the deontologists in the grip of a mistaken view. On the other side stand the fellow travelers along the law-and-economics highway. This group represents Kaplow and Shavell's natural allies. Although the argument of the book might firm their resolve, and harden them in battles with the deontologists, it is not necessary to persuade them. The argument of the book will be lost on the first group and otiose for the second. This leaves the uncommitted law professor searching for an analytical and normative framework within which to organize her thinking and through which to sharpen her critical lens. The book is self-consciously aimed at capturing the hearts and minds of this segment of the legal academy. (4)

It should come as something of a surprise, then, that among the most vehement critics of Kaplow and Shavell's project are other advocates of an economic approach to the law. (5) Whereas most deontologists are likely merely to dismiss Kaplow and Shavell as unsophisticated and their arguments as inadequately nuanced, the majority of law-and-economics scholars are anxious to dissociate themselves from a thesis they are convinced is dangerous to the cause. Why? The answer is that the book openly endorses precisely the imperialistic claims with which others have saddled the law-and-economics movement, often in an effort to discredit it as inadequately catholic or, in the extreme, uncivilized. (6) Whereas the vast majority of law-and-economics scholars have been trying to make the case for including efficiency among the factors suitable to assessing legal reform proposals, the entire point of the Kaplow and Shavell argument is that the only considerations that can figure in a rational reform policy are those of human welfare--or efficiency properly construed.

One might suppose that any book that triggers so much fear and loathing--that sends its natural allies scampering for shelter and engenders apoplexy among its targets--has to be either really dreadful or of fundamental importance. Fairness Versus Welfare is neither. The book is divided into two parts of very unequal length. In the first part, the authors distinguish the two competing normative frameworks of fairness and welfare from one another and set forth the general framework by which they shall adjudicate between the two. (7) In the second, and by far the longer, section of the book, they set out to make good on the strategy of evaluation by comparing fairness and welfare in a wide range of areas of the law--both private and public. (8) The argument of the book requires for its success treating the two parts of the book as connected. That is because the objection to fairness is that the price of fairness is too high in terms of its likely impact on welfare, and so it is the burden of the second part to establish just how extensive those detrimental effects are likely to be. (9) In this sense, the second part forms the evidentiary base for the thesis of the first part.

In fact, however, the second part of the book can stand on its own and constitutes a significant contribution to discussions of the impact on human welfare of various regimes of rules, standards, and policies in a wide range of areas of the law. The source of consternation for "friend" and foe alike is the first part of the book. Whereas the second part is nearly invaluable to anyone interested in policy analysis and legal reform, the first part's argument is entirely unsuccessful. Unfortunately, the overall argument of the book depends crucially on it.

Fairness Versus Welfare claims that welfare, and not fairness, is the standard appropriate to assessing the law and calls for its reform. This is a normative claim and, as such, requires normative argument on its behalf. Any suitable argument for the authors' claim then will consist in a set of reasons or grounds for the claim that welfare, and not fairness, is the appropriate basis for assessing law and its reform. The burden of providing an account of what is to count as grounds or reasons for that claim is the task of the first part of the book: the evaluative framework. Sadly, instead of discharging that obligation, Fairness Versus Welfare serves up empty tautological claims and underdeveloped putative causal explanations--explanations, moreover, that were they in fact adequate, would be so strong as to undermine, rather than support, the book's overall thesis. Fairness Versus Welfare makes a bold normative claim, but it offers no argument adequate to support it.

In Part I of this Review, I summarize the debate on the normative foundation of efficiency prior to the publication of the Kaplow and Shavell book. In Part II, I criticize Kaplow and Shavell's argument that welfare is the uniquely appropriate standard for the assessment of the law and proposals for its reform. In Part III of this Review, I sketch an alternative account of the value of welfare. On that view, however, whatever it is about welfare that explains its value and aptness for assessing the law also explains why fairness is valuable and appropriate to assessing the law. In short, Kaplow and Shavell's account of welfare fails to explain its value and its role in evaluating the law. On the other hand, any plausible account of welfare that is capable of explaining its value explains as well the value of fairness and its appropriateness to evaluating the law and proposals for its reform. The central claim of the book is not just inadequately defended, but, at the end of the day, unsupportable.

1. WHY EFFICIENCY? THE DEBATE PRIOR TO FAIRNESS VERSUS WELFARE

   Law and economics has attained such a dominant position within the modern legal academy that we can be excused for forgetting how relatively young a field it is. Richard Posner's Economic Analysis of Law (10) is the work most responsible for thrusting an economic approach to law onto the broader academic landscape. The distinctive feature of that book was the claims it made on behalf of the explanatory prowess of economic efficiency. In the face of the familiar Critical Legal Studies objection that the law lacks coherence and objective, rational content, (11) proponents of the economic analysis of law, led by Posner, argued that the law is a rational, coherent, and relatively determinate body of standards, the coherence and determinate content of which are explained by the principle of efficiency. As Posner and those who followed him argued, vast areas of the law--especially the private law--could be rationally reconstructed as if they were designed to produce an efficient allocation of resources. (12) The claim was not that the law should promote efficiency--only that it did.

   This desire to shy away from efficiency as a normative ideal could not be sustained, however. For law is the sort of institution that claims a legitimate authority for itself. (13) By its nature, law is coercive. Coercion is, by definition, an interference with human autonomy and personal prerogatives. To the extent that personal autonomy and human prerogatives are presumptively good, coercion is presumptively bad. It requires a defense. Law claims just such justification for itself. The claim may turn out to be false--sometimes or often. Still, the claim is not incoherent or necessarily false. This means that law must be the sort of thing of which the claim could be true. Those who claim that the law is efficient also claim that this fact about it contributes to its legitimacy. If that is so, it is natural to ask what principles of justified political or legal authority efficiency embodies or expresses. Posner understood the importance and appropriateness of this line of inquiry and saw it as his burden to answer the question: What justifies efficiency?

   The burden of economic analysis is to...