Family Law Why is marriage Why has marriage

Family Law • Why is marriage? • Why has marriage become less common, less stable? • Why have out of wedlock births greatly increased? • 19 th century seduction law • Should we legalize the baby market? • The future of marriage and reproduction

Why is marriage? • Family as a unit to exploit division of labor makes sense, but … • Why traditionally as a lifetime contract? • Why do long term contracts exist in general? – Firm specific sunk costs create a bilateral monopoly – With opportunities for bargaining cost etc. – So specify the terms in advance • Marriage as an example – Relationship specific sunk costs in • Specializing in being X’s spouse, and … • Shared children – Permanent contract as one solution. • Still room for bargaining within marriage • Partly controlled by traditional roles – Penalties for breach another, but … • Hard to know who is breaching, since … • Quality of performance hard to observe. • Al-Tanukhi story.

What has changed? • Divorce more common because such sunk costs reduced by … – Lower infant mortality and … – Division of labor taking much household production out of the house. • But divorce on demand raises a new problem of opportunistic breach, because … – Women perform early, men late, aka – Women depreciate faster than men on the marriage market – So if on demand without penalty, men can engage in opportunistic breach – And women respond by adjusting the timing of performance • • Later child-bearing Less specialization in household production Both of which have happened Analogous to my house building story in the previous chapter.

Out of Wedlock Births • Have increased enormously over past 40 years – Not only in the U. S. – And not only among the poor – Why? • Welfare? Perhaps. – But that does not explain the increase among the not poor – Perhaps several simultaneous causes? • Gender ratio – More war, less death in childbirth – Shifts the market against women? But not by very much in the U. S. • Rising income? – Why put up with a husband – If you can afford to do without one? • Akerlof Yellin argument—effect of birth control and abortion. – Joint product link—implication. Marriage or commitment if… – Breaking the link improves opportunities for women who like sex and don’t want children, but … – But their competition worsens the opportunity for women who want children. – Men have more opportunity for sex without long term commitment

Glittering Bonds • The puzzle: Why the custom of engagement rings • The problem – How can women have sex before marriage without – Risking being seduced and abandoned? – Which badly hurts her value on the marriage market • The legal solution – The tort action for breach of promise – Which was gradually abandoned by U. S. courts • The private solution – The man gives the woman a valuable ring when they get engaged – Sex after engagement is permitted – If the man jilts her, the ring forfeits. A performance bond • The custom declined as – Increasing acceptance of non-marital sex – And better contraception – Reduced the risk

Byways of seduction law • 19 th c. English and American law – Adult daughter is seduced and pregnant – Father sues, as – Master collecting damages for injury to a servant • The legal explanation – Daughter cannot sue, because fornication is illegal – And she participated – So use the fiction of master servant instead • My explanation – “Seduction” might be a way of evading paternal control over who she married – If she controlled the action, makes tactic work better – If father controls it, makes it work worse

Law, sex and markets • The baby market • Why is it illegal for adoptive parents to pay the mother? – She can transfer parental rights – Why can’t she sell them? • Why the strong feeling against it? – Anyone not share it? – Can anyone explain it? • Prostitution • To prevent competition with marriage? • Because it “commodifies” sex? • More generalized puzzle about attitudes towards money • • To varying degrees taboo In social interactions. Friends might owe me a dinner, but can’t pay with cash We give gift cards when cash would be easier for both sides

Are babies a good thing? • Over population argument, econ version – Children produce negative externalities – So people have too many of them – So we need to limit population increase • What are the negative externalities? – Use scarce land, resources? • As long as those are private property • Consuming them is a cost, but not an external cost – Pollute, commit crime, go on welfare, … • But there also positive externalities – Make new discoveries from which others benefit – Pay taxes--perhaps to pay for welfare • To make the argument, you need to somehow estimate all of these well enough to sign the sum