An idea generally shared by both economists and philosophers is that a legal rule may either achieve distributive fairness or bring about an efficient outcome, but not both. In this Article, the authors argue that justice requires that legal rules consider both fairness and efficiency. The Article discusses the Coase Theorem, as a tool for determining the most efficient allocation of rights and duties, and the ideas of John Rawls for deriving a fair social contract. The authors then combine aspects of these two hypothetical consensus models into a unified theory of justice that considers the question of what agreements parties would enter into if they could bargain costlessly ex ante without knowledge of which side of the bargain they would ultimately obtain. The answers to this question, the authors contend, will form the basis for legal rules that give weight not only to fairness, but also to efficiency, and thereby will achieve just results.
Michael I. Swygert & Katherine E. Yanes,
Focus on Fairness, Efficiency, and the Law. A Unified Theory of Justice: The Integration of Fairness into Efficiency,
73 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol73/iss2/2