Economic Efficiency and the Parameters of Fairness : A Marriage of Marketplace Morals and the Ethic of Care

This article provides resolutions to a number of conundrums that have vexed policy-makers and scholars for some decades. The most significant conclusion is that efficiency and fairness concerns do not conflict but rather mutually support each other in the goal of maximizing social welfare. This is contrary to the more widely-held view by both advocates of law and economic reasoning and those favoring deontological concerns that a trade-off between fairness and efficiency is inevitable. This article demonstrates how the coalescence of the two frameworks, the cultivation of fairness with law and economics' efficiency maximization, yields greater enhancements of social welfare than efficiency alone, by simultaneously satisfying the criteria of both. The analysis also points out that more than one state of the world likely exists that satisfies both sets of criteria and the selection is political, not determined by any objective criteria, but chosen by the subjective criteria of the decision-maker. This article also discusses Kaplow and Shavell’s noted and contrary assertion that a rigourous demonstration (with mathematical formality) shows that fairness concerns should never enter as an independent factor when policy makers seek to maximize social welfare. I show, however, that Kaplow and Shavell's conclusion rests on a mathematical construction of fairness that essentially strips it of all social-welfare enhancing properties, which does not comport with usual notions and purposes of fairness. It is this faulty mathematical construction that leads them to the conclusions they reach. The indeterminacy inherent in the Pareto efficiency criteria leading to multiple efficient states not only characterizes efficiency analysis's limitations but also delineates the scope for deontological choices. This article shows that a decision regarding efficient states necessarily requires deontological decisions; deontological decisions do not substitute for efficiency but compliment it. Finally, the concept of “parameters of fairness” is introduced as a means to circumscribe the maximum efficient states that are also maximum fairness states. Considering excessive corporate harm by way of example, a matter mainstream economic analysis has failed to resolve, I employ feminist legal theory as the deontological construct to yield a range of satisfactory efficient and fair resolutions. Though any deontological system would do, the conflation of feminist legal theory and law and economic analysis is particularly significant because, historically, supporters in each camp have been diametrically opposed to the tenets of the other