Toward Contractual Choice in Marriage

Indiana Law Journal

Volumn 73, Issue 2, 1998, Pages 511-515

  Ramseyer, J Mark ^a  

^a UNIVERSITY OF CHICAGO   (United States)

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[No Author keywords available]

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EID: 0032372754     PISSN: 00196665     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (14)

1. See Eric Rasmusen & Jeffrey Evans Stake, Lifting the Veil of Ignorance: Personalizing the Marriage Contract, 73 IND. L.J. 453 (1998).
2. On the gains to specialization within marriage, see GARY S. BECKER, A TREATISE ON THE FAMILY 30-53 (rev. & enlarged ed. 1991).
3. See Elisabeth M. Landes, Economics of Alimony, 7 J. LEGAL STUD. 35, 38-39 (1978); see also BECKER, supra note 2, at 14.
4. On the effect of no-fault divorce on the labor-force participation of women, compare Allen M. Parkman, Unilateral Divorce and the Labor-Force Participation Rates of Married Women, Revisited, 82 AM. ECON. REV. 671 (1992), with H. Elizabeth Peters, Marriage and Divorce: Informational Constraints and Private Contracting, 76 AM. ECON. REV. 437 (1986).
5. On the effect of no-fault divorce on the labor-force participation of women, compare Allen M. Parkman, Unilateral Divorce and the Labor-Force Participation Rates of Married Women, Revisited, 82 AM. ECON. REV. 671 (1992), with H. Elizabeth Peters, Marriage and Divorce: Informational Constraints and Private Contracting, 76 AM. ECON. REV. 437 (1986).
6. See Margaret F. Brinig & Steven M. Crafton, Marriage and Opportunism, 23 J. LEGAL STUD. 869 (1994).
7. See generally BECKER, supra note 2; Gary S. Becker et al., An Economic Analysis of Marital Instability, 85 J. POL. ECON. 1141 (1977).
8. The theoretical point here is not disputed, at least within the law-and-economics community. There has been empirical debate, however, over how large the transaction costs (and any other potential impediments to negotiation) are, and whether they are large enough to have a noticeable effect on divorce rates. See generally BECKER, supra note 2, at 333-35 (arguing that no-fault divorce has only temporary effect on divorce rate); Peters, supra note 4 (stating that no-fault does not affect divorce rates); H. Elizabeth Peters, Marriage and Divorce: Reply, 82 AM. ECON. REV. 686 (1992) (same). But see Douglas W. Allen, Marriage and Divorce: Comment, 82 AM. ECON. REV. 679 (1992) (arguing that no-fault does increase divorce rates); Martin Zelder, Inefficient Dissolutions as a Consequence of Public Goods: The Case of No-Fault Divorce, 22 J. LEGAL STUD. 503 (1993) (same).
9. The theoretical point here is not disputed, at least within the law-and-economics community. There has been empirical debate, however, over how large the transaction costs (and any other potential impediments to negotiation) are, and whether they are large enough to have a noticeable effect on divorce rates. See generally BECKER, supra note 2, at 333-35 (arguing that no-fault divorce has only temporary effect on divorce rate); Peters, supra note 4 (stating that no-fault does not affect divorce rates); H. Elizabeth Peters, Marriage and Divorce: Reply, 82 AM. ECON. REV. 686 (1992) (same). But see Douglas W. Allen, Marriage and Divorce: Comment, 82 AM. ECON. REV. 679 (1992) (arguing that no-fault does increase divorce rates); Martin Zelder, Inefficient Dissolutions as a Consequence of Public Goods: The Case of No-Fault Divorce, 22 J. LEGAL STUD. 503 (1993) (same).
10. The theoretical point here is not disputed, at least within the law-and-economics community. There has been empirical debate, however, over how large the transaction costs (and any other potential impediments to negotiation) are, and whether they are large enough to have a noticeable effect on divorce rates. See generally BECKER, supra note 2, at 333-35 (arguing that no-fault divorce has only temporary effect on divorce rate); Peters, supra note 4 (stating that no-fault does not affect divorce rates); H. Elizabeth Peters, Marriage and Divorce: Reply, 82 AM. ECON. REV. 686 (1992) (same). But see Douglas W. Allen, Marriage and Divorce: Comment, 82 AM. ECON. REV. 679 (1992) (arguing that no-fault does increase divorce rates); Martin Zelder, Inefficient Dissolutions as a Consequence of Public Goods: The Case of No-Fault Divorce, 22 J. LEGAL STUD. 503 (1993) (same).
11. Peters, supra note 7, at 690 (emphasis in original).
12. Peters, supra note 4, at 452-53.
13. Critics object that he can also leave by abusing her so badly that she finds marriage intolerable - indeed, this is a point Becker himself made. See Gary S. Becker & Kevin M. Murphy, The Family and the State, 31 J.L. & ECON. 1, 14 (1988). While the danger of abuse is a problem to be sure, it is one the law can substantially mitigate by making abuse itself grounds for which she can demand high levels of alimony.
14. See Robert A. Pollak, A Transaction Cost Approach to Families and Households, 23 J. ECON. LITERATURE 581, 601 (1985). Compare Parkman, supra note 4 (recognizing that no-fault divorce has increased the number of married women in the workforce, but arguing that the increase is due to a lack of compensation at divorce for a married woman's reduced earning capacity), with Peters, supra note 4 (arguing that no-fault divorce causes an increase in the number of married women in the workforce because married women are not compensated at divorce for marriage-specific investments).