ISSN 1062-7421
Vol. 12 No. 8 (August 2002) pp. 477-486
FAIRNESS VERSUS WELFARE by Louis Kaplow and Steven Shavell. Cambridge, MA: Harvard University Press, 2002.
480p. Cloth $45.00. ISBN: 0-674-00622-4.
Reviewed by Ira L. Strauber, Department of Political Science, Grinnell College.
FAIRNESS VERUS WELFARE, by Harvard Law School faculty and economists Louis Kaplow and Steven Shavell, is an astonishing
book. In part, this is because "Fairness versus Welfare" originally appeared, virtually word for word,
as an article in the HARVARD LAW REVIEW (2001). To be sure, for a law review article to be re-published as a book
striking is enough. Yet even more astonishing is the splendidly ambitious objective of this book, which is to
set THE frame in the law scholarship for the simultaneously hoary, yet contemporary, moral debate about what should
count as criteria for evaluating legal policies. Specifically, Kaplow and Shavell argue for their preferred
version of a welfare economics approach to evaluating legal policy (i.e., using a wide range of measures related
to the "well-being" of individuals or utility maximization rather than solely cost-benefit calculations
about wealth maximization or efficiency) versus approaches
that depend entirely, or primarily upon, philosophical principles of "fairness," "justice,"
or rights-based criteria (in its various elastic forms, but hereafter referred to generally as "fairness-based
criteria") for those evaluations.
Political scientists (whether behavioralists, rational choice theorists, or interpretivists) who might think of
themselves as part of the legal intellectual community engaged in this debate will, more than likely be astonished,
and probably disconcerted, to learn that the authors say otherwise. It is lawyers alone, say the authors, who
are intellectually "close enough" (p. 390) to the law, other lawyers, and legal institutions to provide
suitable "expert advice about the design of legal rules and
institutions…" (p. 389). Although this comes late in the book, I mention it now because it is relevant to
the ambit of the book (and also because the issue of political scientists' place, or lack of same, in the legal
intellectual community is worth some serious thought). But if forewarned is forearmed, political scientists who
are disconcerted by being displaced should not let that interfere with their appreciation of the extent to which
FAIRNESS VERSUS WELFARE is a remarkably congenial book to read. In fact, FAIRNESS VERSUS WELFARE is something
of a must read for those of us who want to face up to many of the really critical questions about criteria for
evaluating legal policies.
Authors Kaplow and Shavell have positioned themselves as perhaps the major proponents in the law school community
of a distinctive formulation of those criteria. This formulation is said to be "equivalent to adopting the
moral position that the design of the legal system should depend solely on concerns for human welfare" (p.
5), by which they refer to calculations of well-being by encompassing (virtually) anything that individuals actually
include in their conception of their well-being:
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social sensibilities, goods and services, a sense of "justice," wealth, a desire not to be harmed or
to have others harmed, protection from risk, a concern for the distribution of income (e.g., the overall allocation
of income or wealth), and concerns for future generations. "Objectionable preferences" which involve
malevolence or the like, such as the desire to discriminate on racial grounds, cannot be a priori excluded from
considerations of well-being, but the authors say that it is likely that
they will be prohibited because their costs outweigh the benefits, and therefore will prove to be a preference
that reduces well-being.
The authors' formulation of well-being is also unlike some other versions of welfare economic analysis in that
it is indifferent to theories for aggregating individual preferences that would indicate what the welfare effect
of policies may be (e.g., indifferent between strict utilitarianism, strict equality, or Rawls' difference principle,
or whatever). As I understand it, this atheoretical approach to aggregating preferences is quite a controversial
move among welfare economists (who defend a
specific conception of the proper distribution of well-being), and it is certainly controversial among advocates
of fairness-based criteria who insist that such a theory is central to considerations of "well-being"
(specifically) and of legal policy analysis (generally).
The authors' welfare-based formulation of well-being is in stark contrast not only to welfare-based analysis that
focuses only on costs and efficiency, but also to most legal scholarship, the latter relying on conception of fairness-based
criteria as the baseline for legal commentary sometimes regardless of whether or not individuals actually act
on the basis of a scholars' criteria. According to the authors, fairness-based criteria matter only if they can
be demonstrated to enter into actual
individual preferences, and even then they should never be considered independent of other preferences, or prevail
over the sum of those preferences. What that comes to is that legal analyses should be conducted "exclusively
in terms of their effects on the well-being of individuals (pp. 16, 384), and that fairness-based evaluations (where
alone or mixed with consequentialist ones) should receive no independent consideration whatsoever in analyzing
legal policies.
The authors' insistence that fairness-based criteria receive no independent role in the analysis of legal policies
is impressed upon the reader by repeated hypothetical empirical scenarios designed to explain why fairness-based
policies have the potential either to make some individuals worse-off, or, in the worst-case ( but not rare) scenario,
to make everyone worse-off. These scenarios are placed in private and public law contexts to justify posing
a trenchant moral and political question to advocates of fairness-based criteria: "To whom is one being fair?"
(p. 54). What animates this question is the underlying premise that since both individuals and policy-makers
seek to promote (for a variety of reasons) the well-being of individuals, the burden of proof falls on advocates
of fairness-based legal policies to explain why fairness, justice, or rights-based criteria should be given preference
over well-being.
Alongside these empirical scenarios are logical arguments against paradigmatic legal and philosophical theories
and claims for fairness-based criteria. These logical arguments seek to demonstrate that fairness-based criteria
and claims do not, and, in effect, cannot meet this burden of proof because they suffer from a range of infirmities:
e.g., "metaphysical speculations"
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(p. 59) or stipulations rather than consistent and coherent support for fairness-based criteria; ideological prescriptions
rather than systematic analysis of the implications of fairness-based criteria; or, in specifiable instances,
internal contradictions born of fairness-based criteria that make those who are supposed to be assisted by fairness-based
policies worse rather than better off.
These empirical scenarios and logical arguments constitute the evidence in support of welfare versus fairness.
In the course of presenting this "evidence" the authors also provide a vast number of topic-rich footnotes
that amplify, sharpen, and qualify these scenarios and arguments. Whether it is intentional or not, the effect
of the footnotes is to put forward a second, more complex, version of FAIRNESS VERSUS WELFARE. Having left
the more complex materials to the footnotes, it will be easier for readers who are less familiar with the welfare
economic and philosophical materials to appreciate the general thrust of the empirical scenarios and logical arguments,
but they will be something of a minor inconvenience for scholars who are primed to take issue with Kaplow and
Shavell.
I take the liberty, as well, to suggest that readers who are less familiar with welfare economic arguments in
particular consider reading the introductory, eighth, and concluding chapters together before they read the rest
of the book. These chapters provide clear sign posts of the authors' approach to welfare economics. This suggestion
is not meant to imply that the authors have done anything less than an excellent job, writing lively economic
prose (or to imply that legal or political science prose is by contrast usually lively). But readers are going
to have to navigate sentences like this one: "under the negligence rule, the injurer must pay
for the $100 harm only when he failed to take the precaution and the cost of the precaution is less than the harm
it would prevent; thus the failure to the take the precaution would result in liability for negligence if the
precaution costs $25, but there would be no liability if the precaution costs $150" (p. 100). At a more general
level, the prose is well thought-out, skillfully organized, and expressive.
As indicated, the first chapter provides an overview of the book. It is divided into three parts: "framework,"
"analysis," and "extensions"). The second, and initial substantive, chapter of the first
part of the book lays out the major themes of the framework. It introduces the authors' formulation of welfare
economics analysis and it explains the moral significance and internal coherence of focusing on an individual's
well-being. It also indicates some general objections that the authors
have about fairness-based criteria (e.g., vagueness and various forms of internal incoherence) that drive the subsequent
chapters, and it covers some ancillary objections that support the authors' claim that law review and philosophical
literatures have not adequately confronted the weaknesses of fairness-based theories.
The second chapter also introduces a subsidiary, but major, idea related to the empirical scenarios and logical
arguments: this is the idea that although fairness-based criteria should not be an independent basis for evaluating
legal policies they are normally, and defensibly, the determinative and reflexive factors that explain how individuals
behave in everyday life. That is, the authors neither impeach fairness-based criteria as factors that shape and
control social development, nor as
desirable rules of thumb for individual choice-making.
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Rather, the authors seek to impeach them only in regard to legal policy analysis. The justification for this bifurcation
has its roots in the public/private distinction, and the authors go to some length to explain why what matters
when it comes to individual choices should not carry over into choice-making in the public realm. Much later
in the book (in the seventh chapter) this distinction between the two realms is revisited and expanded upon to
provide an arresting discussion of why and how this gap between private and public criteria for well-being plays
out in tensions between welfare policy analysis/analysts and policy makers (addressed below).
The second part of the book on analysis consists of four chapters, two of which draw from private law venues--torts
and contracts--and two from public law venues--legal procedure and law enforcement--to provide specific empirical
scenarios and logical arguments against fairness-based criteria and in support of welfare- based evaluations of
legal policies. (It is worth considering the extent to which the authors' welfare economics approach to legal
policies provides some ammunition for those who would argue that all law is "public law.")
All the chapters of the analysis part of the book follow more or less the same basic structure: a characterization
of the major conceptions of fairness in relation to a specific topic; a comparison between fairness-based and welfare-based
legal rules, indicating the extent to which the former make everyone worse-off; an explanation of the appeal of
fairness-based rules because of their connection to social norms; an indication of the extent to which fairness-based
rules lead society
astray in determining or evaluating legal policies. In addition to the empirical and logical materials, each chapter
also addresses such matters as why fairness-based criteria have so much appeal, notwithstanding what welfare economic
analysis uncovers about their flaws; how fairness-based social norms might serve as an understudy, as it were,
for the formulation of policies that actually promote welfare; and an overview of the extent to which fairness-based
legal analysis leads to mistaken public policies.
As for some highlights, the chapter on torts is impelled by the authors' concern that the tort literature is locked
in the grip of fairness-based claims that neglect the empirical work necessary to evaluate the practical impact
of that literature. Torts are not usual fare for political scientists. Nevertheless, a discussion of them is
not without its significance for some political scientists. For example, some political scientists will be interested
in the implications of the idea that categories of "injurer" and "victim" should be understood
as "morally arbitrary" (p. 145) in the context of considerations of "corrective justice" and
a duty to rectify victims for their injuries. And some political scientists will be attentive when the authors
express alarm over the extent to which both legal scholarship and policy constantly depend upon conceptions of
fairness that insist that victims be compensated and wrongdoers be liable, resulting, the authors contend, in "insufficient
and haphazard" (p. 149) policies that make persons worse-off .
The fourth chapter is on contracts. The authors' main target is fairness-based legal scholarship (e.g., Charles
Fried) inspired by philosophical theories involving promise-making, personal autonomy, or conceptions of social
conventions (e.g., Kant, Ross, Raz, Searle, Scanlon). The failure of that scholarship that is stressed by the
authors is that it lacks a coherent
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treatment of why contracts must be kept or damages paid. This inexpediency is contrasted, of course, by the ostensible
coherence and advantageousness of their welfare-based theory and its moral proviso for individual well-being.
But since the authors do not find that promise-keeping notions of fairness have had much impact on contract policies
they focus on explanations for why welfare-based rather than fairness-based theory is the only appropriate means
to improve the
substance of contract law.
When the book goes from torts and contracts into the fifth and six chapters on legal procedure and law enforcement,
political scientists will find themselves in more familiar territory and it is likely that they will see in these
chapters material which has a more obvious connection to their own work. The fifth chapter focuses on two dimensions
of legal procedure: a "right" to sue and an extensive treatment of "accuracy" in adjudication.
With some measure of exaggeration, the authors might be said to be taking issue with MARBURY'S famous dictum,
now deeply rooted in the polity's political imagination that "for every legal right there must be a
remedy" (p. 240). The authors' stance here is that there is no specific body of legal or philosophical
literature that develops this dictum, that the dictum is deeply rooted in the polity's social norms and political
intuitions, and that the philosophizing of scholars like Ronald Dworkin, Owen Fiss, and Frank Michelman is kindred
to it.
To put distance between legal policy and philosophizing kindred to MARBURY'S dictum-which either stipulates an
a priori right to sue, or balances such a right against costs---Kaplow and Shavell propose that a "right"
to sue be considered within the context of a multiplicity of factors: reduction of harms, litigation costs, the
care taken not to be sued, costs of legal proceedings to plaintiffs and defendants, and whether suits are subsidized
by the state, or are dependent upon individuals
bearing their own legal costs, as in the U. S., or are prohibited or taxed by the state. The authors run four
hypothetical scenarios about contracts (variations on the cost of care being high or low and plaintiffs' costs
being high or low) to compare fairness-based policies and welfare economic-based measures. The up-shot of these
scenarios is that about half the time, fairness-based policies make everyone worse-off.
The authors contend that their findings about contracts and "a right to sue" are applicable to other
legal policies informed by fairness-based sentiments, such as increasing access to the courts (hence creating new
legal rights), the expansion of class action suits, legal assistance to the poor, and mass tort litigation. All
policies of this ilk are to be analyzed in welfare economic terms. The authors do not claim that such non-contract
policies are necessarily mistaken, but that they ought to
be studied to establish under what conditions fairness-based policies actually do make individuals better rather
than worse-off. Undoubtedly, Kaplow and
Shavell's welfare economic-based analysis will be welcomed as long overdue by those who are sympathetic to the
connotations of an English headline that heralded "Fat Americans Sue Fast Food Firms" (for enticing them
to eat unhealthy foods). In turn, advocates of a "right" to sue, even those who consider the costs
of litigation but not the other measures of a welfare economic approach, can be expected to be alarmed, and even
unconvinced, by analyses that will undermine intuitions about an intrinsic "moral" right to sue.
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If the material on "a right to sue" does not aggravate the breach between consequentialists and those
who advocate primarily principle-based approaches to adjudication, then the material on accuracy should do the
trick. The authors imply that procedural and substantive policies concerned with accuracy (e.g., better information
for decision-makers, enhancing availability of remedies, or quality of outcome) are to be understood as generated
by self-interest. And they contend that since the core questions about accuracy are the tensions and trade-offs
between more or less accuracy and costs, only welfare economic analysis specifies how to
resolve these tensions, as well as indicating what constitutes fundamental moral justifications for choosing accuracy
over costs and providing criteria for determining which procedures "best" provide for accuracy. Their
discussion of accuracy deals with tort adjudication, but again the authors claim that their analysis is applicable
across the adjudication board, with one important, and fecund, proviso. The proviso is that the authors recognize
that there is a possibility, albeit a slight one, that
persons may indeed have a taste for things like "dignity," or controlling for abuses of power, or legitimacy
and that those tastes cannot be ascribed altogether to instrumental or self-interested concerns. Accordingly,
the authors acknowledge that evaluating accuracy may be more demanding in other areas of the law than for torts
and contracts, and therefore welfare-based measure will be more difficult to construct and conclusions about
accuracy in adjudication will be more "speculative" than in torts and contracts (pp. 285-86).
What they acknowledge in this chapter is connected to qualifying remarks in this chapter about how fairness-based
analysis can lead astray. The authors allow that their objections to "fairness" in regard to legal procedures
"do not constitute a decisive objection if the notions of fairness are independently valuable. But if they
are [independently valuable], analysts must identify the notions more precisely and indicate why the notions should
be given weight, especially given that their pursuit
comes at the expensive of individual well-being" (p. 289). This is not the only instance of a nuance in the
authors' confident claims for welfare-based analysis and their challenges to fairness-based criteria. Nuances also
appear in the sixth, and final substantive, chapter on law enforcement and over all the impression given is that
the authors are alive to the limitations of welfare-based analysis when analysis moves away from market-based
phenomena like torts and contracts into other realms. However, critics of welfare-based analysis will undoubtedly
question whether Kaplow and Shavell are SUFFICIENTLY alive to those limitations.
Their skepticism, to the extent that it occurs, will carry into that sixth chapter on law enforcement. The target
here is the fairness-based criteria that focus on the non-consequentialist idea of retribution (attributed to
Kant and Hegel's work and what follows from it). The authors' preference is to give weight to consequentialist
concerns about deterrence and about how much punishment is enough punishment. Non-consequentialist fairness-based
criteria are faulted for being incomplete or incoherent in regard to things like what constitutes wrongfulness
deserving of punishment, what are degrees of wrongfulness, and how much to spend on
substantive/procedural justice and on catching violators. Further the authors do not believe that fairness-based
analysis that emphasizes retribution can be rehabilitated without including consequentialist
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evaluations about punishment and deterrence, which would then make fairness-based theory inconsistent by diminishing
its emphasis on retribution. So, at a theoretical level the authors believe that the field should be totally
clear for a welfare economics approach that "pays attention to criminals who escape as well as criminals who
are apprehended, and relatedly, takes account of how punishment affects potential criminals' behavior---factors
that tend to be downplayed or ignored under retributive theory's…view" (p. 372).
The hypothetical illustrations in this chapter compare punishment and deterrence measures in scenarios posing various
levels of the severity of sanctions. These scenarios show how and why retributive theory and criteria can be
associated with more crimes being committed and more criminals escaping punishment. The authors do consider various
ways to revise retributive theory so that it yields policies that are associated with fewer crimes and fewer criminals
escaping punishment. But their analysis also shows that if retributivists accepted these revisions they would
also have to accept a higher number of innocent persons being punished (for reasons that are beyond the ambit of
this review), and therefore fairness-based analysis would fall into that problem of contradicting its core retributive
principle that the punishment should fit the crime.
However, granted the relevance of social norms about retribution, the authors do not deny that tastes for retribution
are deeply relevant to the assessment of legal rules. Consequently, Kaplow and Shavell do provide an important
nuance to their empirical attack on fairness-based criteria by allowing that it would be appropriate to "compromise"
(p. 363) deterrence, and, for example, to not exact the optimal punishment if that sanction offends the (empirically
measurable) "tastes" of people (in contrast to merely some philosophized description of a taste for retribution.)
Ergo, the authors do not go so far as to claim that current fairness-based and
retributive law enforcement policies are necessarily flawed, but that it falls upon the shoulders of welfare economics
legal scholars and policy analysts to scrutinize those policies, and if necessary reformulate fairness-based policies
in welfare economic terms.
The role of welfare economics-oriented legal scholars and analysts is, for the purposes of this review, the heart
of the third part of this book. In the seventh chapter, Kaplow and Shavell advance themselves as spokespersons
for the idea that legal scholars and analysts ought to assume"the social responsibility to provide proper
expert advice about the design of legal rules and institutions…" (p. 389). This is the point in the book
where political scientists are written out of the legal intellectual
community. Kaplow and Shavell remind legal scholars who do assume that responsibility that their recommendations
will not be met with open arms. And they
try to explain why there is such intellectual resistance to welfare-based analysis, which they are confident is
empirically and logically superior to its fairness-based opponent. One explanation they give for that resistance
is that previous forms of welfare-based analysis have focused solely on welfare maximization, or have been viewed
as callous, cruel, or were objected to because they appeared to exclude significant "moral" considerations.
Undoubtedly this book should be read as Kaplow and Shavell's attempt to present a systematic rendition of welfare
economic analysis that will go some distance toward reducing that resistance.
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But according to Kaplow and Shavell, a more fundamental explanation for resistance to welfare economic analysis
is said to arise out of socialization to, and the resolute internalization of, fairness-based social norms (such
that even welfare-minded scholars and analysts must resist them). One manifestation of this process of socialization
and internalization is the authors' complaint that their opponents "are able to assume the mantle of moral
superiority in discourse with other academics"
(p. 385). Furthermore, they see judges as no less inclined to adopt fairness-based criteria, and no more intellectually
prepared to deal with the specifics of welfare economic-based analysis, than anyone else.
To make things even more difficult for advocates of welfare economics, the very specifics of welfare based economic
analysis are recognized as a potential source of resistance to it. For instance, since the empirical effects of
policies (other than for torts and contracts) are often difficult to measure, and welfare recommendations are therefore
often highly qualified ones, the relatively indeterminate character of welfare-based recommendations pales in
comparison to the more intuitively
pleasing and (mistakenly) decisive findings of fairness-based recommendations.
In light of all this, what should advocates of welfare economics do? One thing the authors say they should do
reminds me of what William Harvey says he did in the "Anatomical Disquisition on the Motion of the Heart
and Blood in Animals" (1628): persist in refining the empirical craft and amassing more evidence against
the opposing point of view. This is also redolent of Richard Posner's call in THE PROBLEMATICS OF MORAL AND LEGAL
THEORY (1999) for legal scholars to become more professional by rejecting philosophy for the path of the social
sciences.
Even so, difficulties, notably political ones, still remain for welfare economic analysts and analysis. Governmental
officials and policy makers are not well versed in welfare analysis, note the authors, and citizens, to whom those
officials and policy makers are (ultimately) accountable, are, if anything, even less well versed. Into the mix,
there is that grip of fairness-based norms and intuitions. Kaplow and Shavell are not deterred though. They
think that more often than not welfare-based arguments can be accessible enough to ordinary citizens. When they
are not so accessible, they think that governmental officials and policy makers ought to be
sufficiently rhetorical to reformulate welfare economic arguments into fairness-based ones, or to use fairness-based
arguments as a proxy for the more reliable arguments of welfare-based policies.
However, the authors recognize that what analysts, governmental officials, and policy makers deem to be fair from
a welfare economic point of view may conflict with what citizens intuitively think is fair following upon those
fairness-based norms and intuitions. Under those circumstances, analysts should not compromise their analysis
to politics and culture. Besides, they point out, gaps between what ought to be done in politics and what can
be done are due less to welfare economics than it to politics generally. But if there is resistance to welfare
economic-based policies all the way down then Kaplow and Shavell concede that governmental officials and policy
might have to compromise what is best for what is practical. I think that this discussion of political culture
and behavior--as brief as it is--will
be welcomed by behavioral political scientists, new institutionalists, and those
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who approach the law from a constitutive perspective.
But political culture and behavior are left behind in the eighth chapter, and any tension between confidence in
the public policy significance of welfare-based economics and the need for concessions to fairness-based criteria
is left behind also. Here, with unmitigated confidence, the authors anticipate and respond to questions and criticisms
that advocates of a welfare economic approach to law and policy are likely to confront. Some of these subjects
were considered previously and are expanded upon in this chapter: the design of legal institutions, accuracy,
controlling governmental officials' behavior, the legitimacy of legal institutions,
administrative costs, preferences and well-being (i.e., imperfect information, the effect of law on preferences,
trumping objectionable preferences, the role of law for social change, tastes for notions of fairness, equality
generally and equality under the law). Other subjects are more or less new (e.g., the problem of empirical uncertainty
in calculating well-being and predicting behavior and the extent to which persons are not rational maximizers of
their well-being.) These subjects
are clearly central ones for evaluating the strengths and weaknesses of a welfare economics-based approach. The
authors' treatment of the putative weaknesses considered here manifests the confidence the authors have in welfare
economics. Their bottom line is that, regardless of its admitted shortcomings, there is every reason to expand
on the strengths of welfare economics and to persist in exposing the weaknesses of fairness-based theory.
Conceivably, political scientists who are advocates of fairness-based theory will find reason to dig deeper into
the putative weaknesses of an economics welfare approach, and I dare say the authors' treatment of fairness-based
theory throughout the book as well. But if they do that, they should be attentive to the remaining three pages
or so of the book, where Kaplow and Shavell recommend what they think needs to be done to make fairness-based
theory a worthy competitor to their welfare-based approach. This advice includes fairness-based analysis becoming
better at explaining the psychological basis for "fairness" as an independent principle, becoming clearer
about the internal logic of conceptions of "fair" policies, repairing recommendations for "fair"
policies that actually require injustices, and clearer about when and why "fair" policies require a
reduction in well-being. Naturally, the authors have tried to persuade readers that such matters do not trouble
welfare-economic based analysis.
Advocates of fairness-based criteria can be expected to return the favor with arguments to the effect that legal
and policy analysis must inevitably depend upon the "fairness" criteria that the authors eschew, and
that fairness-based theory has been inadequately or mistakenly characterized by the authors. And the hope is
that in the process, the bar for what counts as credible positions in that hoary yet crucial moral debate over
criteria for evaluating legal policy will be raised.
I have some hope in that regard because after two readings this book has "aged" wonderfully. It keeps
drawing me back into its pages. Now, admittedly, I am one of those scholars who are positively disposed toward
messages about policy analysis that pursue consequentialist and social fact considerations. Then again, I also
am among those scholars who are not inclined toward an either-or approach to
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welfare versus fairness; who think that it is prudent, if not "necessary," to balance criteria for evaluating
legal policies; and that politics means taking into consideration that second- and third-best policy choices
may be both practical and "best."
Besides, there are discussions in this book that I am uncertain about because I am no where well versed enough
in welfare economics to pursue them. For example, the authors discuss something called the Kaldor-Hicks efficiency
test (concerning, at the risk of revealing my ignorance, whether those who gain from policy changes could still
benefit from those changes if they compensate the losers so that they would be indifferent about policy changes),
and I have an inchoate sense that that test may relate to conflicts between liberalism and welfare economic recommendations.
So, the best explanation that I have for why this book keeps pulling me back in, is, its details aside, the craft
by which the authors have conscientiously constructed their position. That is more than enough to make any reader
thankful, and perhaps this review will encourage others to give FAIRNESS VERSUS WELFARE the attention it deserves,
if not demands.
REFERENCES:
Harvey, Philip. 2002. "Human Rights and Economic Policy Discourse: Taking Economics and Social Rights Seriously."
COLUMBIA HUMAN RIGHTS LAW
REVIEW. 33: 363.
Hoffman David A., and Michael P. O'Shea. 2002. "Can Law and Economics Be Both Practical and Principled?"
ALABAMA LAW REVIEW. 53: 335.
Posner, Richard A. 1999. THE PROBLEMATICS OF MORAL AND LEGAL THEORY. Cambridge, MA: The Belknap Press of Harvard
University Press.
Singer, Joseph William. 2002. "Something Important in Humanity." HARVARD CIVIL RIGHTS-CIVIL LIBERTIES
REVIEW 37: 103.
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Copyright 2002 by the author, Ira L. Strauber.