Document Type
Article
Publication Date
2004
Publication Information
41 San Diego L. Rev. 177 (2004)
Abstract
Applying knowledge from other social sciences makes particular sense with the law and economics of the family. Much of the behavior we see and experience within families is difficult to see or understand as economically rational, that is, narrowly self-interested. Many of the legal changes we make that appear to be rational, at least from a cost-benefit perspective, turn out to be unsatisfying or even counterproductive. Though economists tend to view motivations or "utility functions" based upon "revealed preference," extended models like that of socioeconomics go below what is revealed to measure, as best we can, people's attitudes and feelings about what may be the same phenomena. Motivation, in this view, is far more complex than economists simple rational actor model suggests. In particular, the socioeconomics model presents worlds in which fairness and justice are explicitly taken into account. Good empirical research should track this difference in emphasis because fairness and justice, and feelings about them, matter. If researchers stop at the level of counting, important though this is, policy decisions that ought to be made on the basis of solid research may have what we call design defects in products liability. They will ultimately "crash" because they are based upon a skeletal model of human motivation that frequently does not include distributional concerns or feelings that go beyond narrow self-interest.
I argue here that family law should take into account underlying human and societal problems. Socioeconomics helps students systematically examine those issues in ways that go beyond the anecdotal. Empirical research can help set up such discussions. I give two examples coming from my own empirical work that I use in my class. Both of the examples reflect significant policy debates: Divorce and child welfare law are taught in nearly every family law survey course. Both of these would seem to have relatively simple legal and economic explanations and solutions. But as we dig deeper, or go behind the usual market-based solutions, cases, and statutory law, the picture rapidly becomes more complicated. Closer analysis reveals the disutility of facile solutions, the "polycentrism" of the problems (to quote Lon Fuller), and, frequently, the unexpected results of legal change.
Recommended Citation
Margaret F. Brinig,
The Role of Socioeconomics in Teaching Family Law,
41 San Diego L. Rev. 177 (2004).
Available at:
https://scholarship.law.nd.edu/law_faculty_scholarship/584
Comments
Reprinted with permission of San Diego Law Review.