Introduction by Martha L.A. Fineman
“Since the late 1960s and with ever increasing momentum, law has come under the influence of economic theory and methodology. Although considered a specific school of thought within American legal jurisprudence, Law and Economics and the neoclassical economic model on which it is based, have permeated legal analysis in a wide range of areas, considered useful in the development of rules of universal application for law and policy making.
In response to the increasingly accepted notion that economic principles are and should be the primary lens through which legal and policy decisions are made, this volume was conceived in order to bring together essays that are critical of the Law and Economics school of thought, as well as of the neoclassical economic model more generally. The essays collected in this volume present a variety of legal and nonlegal perspectives and come from a variety of disciplines. All the authors are generally concerned with the implications of the wholesale incorporation of an economic model into law and policy making. Although there are many avenues through which one can form a critique of Law and Economics and neoclassical economics other than the critique developed out of an analysis of gender, the essays in this volume primarily bring feminist perspectives to bear on homo economicus, either rejecting economic analysis within the law altogether or, alternatively, using economic analysis in a manner that challenges the gendered power dynamic within the law.
The interaction between feminism and economics within the legal academy over the past several decades is an interesting historical phenomenon. Like feminism, economics is a relatively new academic discipline. Economics has had a much more formal recognition and acceptance in law, however. It has become a framework for legal analysis not just to be used to provide supplementary perspectives on areas of legal inquiry, but rather has been used to complete rethink core legal subjects. Tort law, contract law, and administrative law are taught today in some law schools or by some law professors exclusively through the lens of economics.
The essays in this volume confront the inroads that economics has made into the legal academy, and further address the broader social and political context in which the Law and Economics school of thought has developed. As legal feminism is a constitutive part of a broader academic, social and political movement, Law and Economics is also fundamentally formed by and formative of a broader political agenda. But unlike legal feminism, which seeks to draw attention to and suggest alternate visions for articulating power within society, Law and Economics uses principles of neoclassical economics to develop laws and social policies that maintain if not bolster current allocations of power. The essays in this volume are thus concerned with the place of economic analysis within a broader political context that seeks to use economic principles and rhetoric—in addition to law—to further and to justify certain conservative political ends.
This introduction seeks to provide a broad framework for the essays collected in this volume. After providing a description of feminism methodology and analysis as it has developed with the legal academy, we describe Law and Economics and the neoclassical economic tradition of which it is a part.
Feminist Legal Theory
Feminism as a political theory and an academic discipline has flourished to the extent that the term “feminism” has become over-determined. There are so many different approaches, emphases and objectives within feminism that it is difficult to speak of it as a single theory or methodology without running the risk of describing women’s and men’s experiences and desires in essentialism terms. Nonetheless, it is possible to make some generalizations about what feminism is as a political and theoretical mode of inquiry. As an intellectual mode of inquiry, feminism articulates a theory that individuals lead gendered lives and challenges assertions and assumptions of gender-neutrality and objectivity within academic disciplines.
One important characteristic of feminist inroads into the academy is that feminism foregrounds the integration of practice and theory. As noted historian, Linda Gordon, has stated, feminism is “an analysis of women’s subordination for the purpose of figuring out how to change it.”.2 As a result of this focus within feminist theory on the practical aspects of dismantling societal subordination, many feminists have gravitated toward law and law reform as a primary focus of study and action. And feminism has had many successes in its engagement with the law. Feminism, along with other twentieth century methodologies, such as psychology, has had a definite impact on law over the past several decades. This impact is apparent not only in legal scholarship, but also in doctrine employed by courts and developed by legislative bodies. The fundamental principles of discrimination and criminal law, for example, have been scrutinized and, occasionally, revised in the light of feminist insights and arguments.
Many of the women who were part of the initial influx of women into law schools in the 1970s were explicitly interested in a feminist political agenda. They came to law schools with the mantra that “the personal is the political” ringing resolutely in their ears.3 They were interested in reform and the role of law in the project of engineering a society that fostered greater equality between men and women. These early feminists were optimistic about using law to attain equality with men.
In determining how best to achieve such goal, the majority of early feminist legal theorist adopted a discrimination model to the issue of gender. Their objective was to use the law to challenge biased treatment and develop laws that allowed women equal opportunities with men. Because of their determined focus on equality between men and women, these women believed that any recognition of difference between men and women within the law and any argument for “special treatment” for women within the law would operate to the disadvantage of women. As such, these feminists focused their attention on challenging discriminatory laws that denied women full participation in public institutions, such as the jury system (in which they were successful) and the military (in which they were unsuccessful). They challenged financial and market institutions’ different treatment of women and men, such as in the insurance industry, and litigated under Title 7 of the Civil Rights Act of 1964 to enforce equal treatment for men and women in employment. Many of the early cases brought by these lawyers were strategically brought on behalf of men who had been excluded from women’s institutions or who complained about favored treatment for women. The legal challenges of these “equality feminists” have had a profound impact on the participation of women in many formerly all male arenas within society.
Other feminist scholars, by contrast, have sought to develop and build upon the concept of gender difference. Though these feminists differ in their articulation of the nature of such difference (be it, for example, cultural, biological, or as a result of gendered structures of power), “difference feminists” have taken the notion that women and men are fundamentally different as a basis for demanding that the law be understood as having been developed by and for institutional male dominance and, as such, should be expanded in part and reconstructed in part in order to reflect and sustain women’s specific experiences. Unlike the discrimination or equality model, difference feminism is uninterested in using the law to aid women in participating in “male” institutions and structures as currently constructed.
The difference model of legal feminism has been effective in transforming way we think about many areas of the law. For example, in the area of divorce law, by pointing out the valuable role that women as homemakers and mothers have played in the family economy, difference feminists have successfully challenged in many states the rules governing the division of property upon the dissolution of marriage. Further, the focus of difference feminists on the subordination of women led to the development of new legal paradigms within criminal and tort law, including concepts such as sexual harassment and the battered women’s syndrome. In these two developments, courts began to recognize that a woman’s reactions to certain kinds of flirtation in the workplace or to repeated threats and actions of violence at home might not be the same as those of the “reasonable man,” which, prior to the efforts of difference feminists was the primary standard through which tort and criminal legal actions were judged.
Both equality and difference feminism have had a significant impact on the law. Yet it is interesting to consider in which specific areas of the law, each has had its impact. As difference and equality feminists argued their causes on all fronts, it turns out that each feminist paradigm was finding its successes on difference sides of the public/private divide that has characterized legal jurisprudence in the United States. For example, sexuality, “domestic” violence and family law are areas that have historically and stereotypically been considered to be of special concern to women. While rape and sexual harassment are “public” events in that they are the focus of legal regulation and policy, the unease evident in the law with dealing with these two crimes is the result of the fact that we view them as being intrinsically related to activities commonly understood to be “private” activities, such as consensual sex and flirtatious seduction. It is in these areas that difference feminism has had its greatest successes within the law. By contrast, in legal arenas outside the private sphere of home, family and sexuality, equality feminism has had its greatest successes. The problem with this dynamic for feminists is two-fold. First, the focus on gender subordination solely within “private” spheres gives women a legal presence solely within such sphere, thus casting women solely within a traditional role and not as public citizens. Further, such role is one that is defined within the law in the context of victimhood. Second, while aiding women in attaining positions of power in the “public sphere,” as equality feminists have focused their attention on, is important, such efforts do not obviate a need for an analysis of structures of power and structural subordination, both gender and otherwise, within this “public” sphere.
The deconstruction of the traditional public/private divide in the law is a significant area of analysis within legal feminism today. For the classification of the world into such spheres contains significant paradoxes. For example, while the family traditionally has been viewed as a private sphere, it is highly regulated and controlled by the state. Law defines who may marry whom and what formalities must be observed. Law defines the consequences of marriage and parenthood during on-going relationships and imposes significant policy directives in the context of divorce and childrearing.2 Law also defines what the responsibilities of family are and the role of the family within the larger society.3
Further, while the state is designated the quintessential public and the family as the quintessential private institution, the market is distinctively chameleon-like. Markets are constructed as public (and therefore under a different, competitive set of norms) when contrasted with the family, but as private (and therefore not easily susceptible to public regulation) when paired with the state. Law and Economics decidedly views the market as a private realm and views the intervention of the public government into market activities in the form of governmental regulation as suspect. Further, recent policy debates concerning privatization that are grounded in neoclassical economic rhetoric operate along the public/private divide. Proponents of privatization hold up the private market as the solution to many “problematic” currently public societal institutions, such as welfare, education, and the prison system.
It is on this terrain that feminist methodology can provide a pointed critique of Law and Economics and neoclassical economics. Feminism has extensively considered the wisdom of viewing society through the public/private binary and brought to light the extent to which the private realms—in particular, the family and the market—are in fact created or at least regulated by the state. Further, feminism has brought to the manner in which the status quo within the quintessentially private realm, the family, affects women’s participation in the market. Finally, feminists have grappled with both the benefits and the burdens of public regulation of private institutions. As such, feminist methodology is particularly well adapted to providing a broad-based analysis of Law and Economics and political policy and rhetoric similarly grounded in neoclassical economics.
Law and Economics
The law has always been engaged with economic issues and law clearly has an effect on the economic lives of individuals in society. However, it has only been during the last several decades that economic theory and concepts have been explicitly applied to general theoretical interpretations of the law. This application, the Law and Economics school has flourished within legal academia, in many instances eclipsing other methods of theoretical inquiry. Additionally, through the establishment of institutes and training programs for judges, law professors, and lawyers, the methodology, concepts and rhetoric of Law and Economics have spread beyond the academy, taking root in professional and policy making circles as well.
While there are many instances where the law and legal practice engages economics, Law and Economics as an academic discipline incorporates principles almost exclusively from neoclassical economic theory, a social science discipline that is grounded in political liberalism and rooted in Adam Smith’s writings on the individual economic actor in the market. This actor, homo economicus, or “economic man,” is a completely rational actor who enters into transactions solely in order to maximize his economic well-being. He is unconstrained by noneconomic impulses and desires and transacts with similarly-situated economic men who are all presumed to be initially on equal footing to his own. The outcome of transactions entered into by homo economicus is considered to be “efficient” for purposes of neoclassical economic analysis if, given an limited set of resources, at least one party to the transaction is better off having entered into the transaction than would be the case had the transaction not taken place, and neither party is worse off.
Out of this theoretical framework, Law and Economics incorporates the efficiency standard of neoclassical economics into the analysis of the law. Within the law, the standard generally requires that legal actors seek to identify legal solutions to legal issues that are most “efficient” for the parties involved, thereby also resulting in an outcome that is of maximum benefit to society overall.
An underlying theme in the efficiency analysis with respect to the law—and one that has elicited a certain amount of controversy—is that there are many areas where legal rules only serve to hinder economic and societal efficiency. According to this notion, individuals will typically bargain to efficient results in the absence of legal rules and, therefore, delegalization or privatization tends to provide maximum benefit overall. This theme is in part based on the writings of neoclassical economist Ronald Coase, who demonstrated that in a vacuum, the bargaining between two parties would generally result in identical overall costs to the economy regardless of the legal rules that initially allocate rights and responsibilities with respect to such parties. Law and Economics has taken this principle as a scientific truth and used it to normatively argue that legal rules and governmental regulation tend to hinder the efficient outcomes that would otherwise occur in the “naturally-functioning” market, thus obviating the need for laws that redistribute rights and resources in an egalitarian manner. Such conclusions of Law and Economics, which are said to be supported by “scientific” economic theory, generally coincide neatly with conservative political ideology that bemoans efforts on the part of government to include conceptions of fairness into the legal analysis of private institutions such as the market.
Although Law and Economics has made its most significant inroads into those areas of the law, such as tort law, which seek to monitor individual actors within the market, the reach of Law and Economics is far broader. Certain Law and Economics writers have argued that the efficiency standard should be a guiding principal within a general conception of justice. Richard Epstein, for example, searches for a theory of fairness that can be reconciled with the conclusions of economic theory.[i] Richard Posner, however, who is considered by many to be the foremost law and economics theorist, goes much further and actually equates economics with justice.[ii] As Posner has asserted, what is labeled “unjust” in society is in reality those actions and practices by governmental and individual actors that waste resources. As such, Law and Economics has been extensively applied to areas of the law not traditionally through of in terms of value. For example, intimate interactions, aspects of identity, such as sexuality, and intimate legal relationships, such as adoption, marriage, and divorce, have been theorized by Law and Economics writers in economic terms and legal rules or regulations have been proposed (or opposed) based on principles of efficiency.
Law and Economics and the neoclassical economic model on which it is based have had a significant impact on the development of law and policy. In part because it is presented as a scientific and objective method of analysis, it has been very influential in practice and politics. Judges, legislators, and other legal policymakers now routinely use the concepts and language of Law and Economics to fashion rules having not only economic and material, but also normative and ideological implications for American society. For example, much of the rhetoric and theory behind various calls for welfare reform and for the privatization of formerly publicly run societal institutions (e.g., prisons, shelters, hospitals, etc.) is a direct outgrowth of Law and Economics.
Critics of Law and Economics come from a variety of disciplines, including from within economics departments. Some critics question the basic premises of neoclassical economics and Law and Economics, finding the methodology to be of limited use and scope either in an abstract theoretical sense or specifically with respect to substantive areas of legal analysis. Some critics have questioned or at least revealed the political and ideological underpinnings of the claim that economics is a “science.” Others have focused on the specific areas of the law that Law and Economics has scrutinized, frequently making the point that there are societal values and concerns beyond that of efficiency (this is particularly an issue of concern to critics of Law and Economics as it has been applied to relationships as complex and varied as those involving sexual and emotional intimacy). Finally, it has been pointed out by numerous critics of Law and Economics that one of the basic premises of Law and Economics, that bargaining without legal rules frequently leads to the most efficient outcomes, in many cases veils a preference for maintenance of the status quo.
Organization of this Volume
There is no single unified vision among the essays in the five Parts of this volume. The authors represent a wide variety of perspectives and methodologies, although they certainly share a general orientation toward egalitarian and pluralistic ends. Readers will find disagreement about the nature of the problem, about the merits of specific proposals and approaches, and about the value and wisdom of using of economic analysis. Feminists have long recognized that it is through disagreement and struggle with others who share the common goal of anti-subordination and social equality that real progress in our collective thinking can be made.
The first Part of the volume, “Law and Economics and Neoclassical Economic Theory,” presents an overview of the theoretical issues at play in neoclassical theory and Law and Economics. The authors of these essays focus directly on the ideological and historical assumptions and biases of neoclassical theory and Law and Economics, as well as on specific theorists within these traditions. These essays show Law and Economics to be part of a specific political tradition, one that engages with economic rhetoric about the state and the market in order to further certain political ends.
Part II of the volume, “Feminism Confronts Neoclassical Economic Theory and Law and Economics,” presents feminist responses to neoclassical economics and Law and Economics. The writers of the essays in this Part come to differing conclusions with respect to the usefulness of economic theory for feminist and critical theory. On the one hand, there is the argument that economic concepts and rhetoric can be used toward feminist ends in order to divert the current, antifeminist and inegalitarian direction of law and economics policy making. The countervailing argument is that the gendered biases inherent in neoclassical economics and the location of Law and Economics within such male-centered political tradition make untenable the notion that such economic analysis can be used toward feminist ends.
Part III of the Volume, “The Costs of the Free Market: Theories of Collective Responsibility and the Withering Away of the Public Society,” focuses on specific applications of economic theory as it relates to the structuring of privilege through governmental action. The essays in this Part view the obsessive focus on efficiency, individualism and utility in both Law and Economics and in our contemporary political arena as having pushed aside any concern for values such as collective responsibility, altruism, and empathy. These essays also address the impact of such a dynamic on the nature or our political democracy.
By broadening and challenging contemporary approaches to issues concerning entitlements and existing allocation of wealth, these essays engage fully and honestly with important and current issues in which economic implications are important and necessary components of public policy. A particular focus of the essays in this Part is the role the U.S. federal government plays in wealth distribution through the welfare state in addition to the role of economic rhetoric in attempts to “reform” welfare programs.
Part IV of the volume, “Feminism, Economics and Labor,” discusses the interplay between the performance of labor and one’s access or lack of access to economic power in contemporary society. It focuses on the nature of paid versus unpaid labor in society and the gendered nature of such dichotomy. Of primary concern to feminists who engage with economics is the danger that the implementation of economic methodology to the feminist analysis of work could lead to an overemphasis on merely the economic value of such work and a lack of an interest in values that cannot be quantified in economic terms. This debate plays out in the feminist effort to quantify unpaid caretaking work within the family (undertaken primarily by women) and the effects of such work on women’s ability to participate in the paid labor force.
The final Part of the Volume, “Economics and Intimacy: Gendered Economic Roles and the Regulation of Intimate Relationships,” focuses on “the family.” On a mythic level, this institution is considered to be essentially separate from public legal and market concerns. Yet it is in fact a highly regulated institution that is both affected by and productive of economic relations. The essays in this Part focus on these relationships. Economic theory has recently reshaped arguments about appropriate policies governing marriage, divorce and children. The family is increasingly reduced to an economic institution, marriage seen as another example of a bargained for relationship, children seen as producing costs and provoking strategies on the part of their parents. A model of the family shaped by economic concepts and ideas has both dangers and promise for feminists interested in addressing the inequalities inherent in the traditional institution of marriage in which women historically had no bargaining power.”
2 Linda Gordon, “The Struggle for Reproductive Freedom: Three Stages of Feminism” in Z. Eisenstein, Ed., Capitalist Patriarchy and the Case for Socialist Feminism at page 107 (note) Longman, 1979).
3 The recognition of a political agenda may help to explain why some scholars who (mistakenly) view their work as apolitical and objective dismiss feminism.
2 See e.g., Uniform Marital Property Act §4, 9A U.L.A. 109 (1998) (Classification of Property of Spouses).
3 See Martha Albertson Fineman, Our Sacred Institution: The Ideal of the Family In American Law and Society, 1993 Utah L. Rev. 387, 400 (1993) (discussing the construction of family function in society and the distribution of roles within the family to meet those assigned functions) (hereinafter Fineman, Our Sacred Institution).
[i] Richard Epstein, “A Theory of Strict Liability,” J. of Legal Studies 2 (January 1973): 151-204, 152.
[ii] Richard A. Posner, The Economics of Justice (Cambridge, Mass.: Harvard Univ. Press, 1983), p. 84.
Fineman, M.A., & Dougherty, T. (2005). Feminism Confronts Homo Economicus. Ithaca: Cornell University Press.
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