Economist Shoshana Grossbard’s book, The Marriage Motive: A Price Theory of Marriage: How Marriage Markets Affect Employment, Consumption and Savings (2015), provides important insights into the impact of the legal system on families. It sheds new light on many of the questions that today’s law professors and family policy analysts address; yet, it a book that that only professional economists are likely to read. The reasons tell us a lot about what has happened to the law and economics movement of the last thirty years, and the different directions its influence has taken.
At the time I started writing about Family Law at George Mason in the eighties, law and economics was in its heyday. Peg Brinig and I, my George Mason colleague at the time, began to explore the implications of what seemed to be an exciting new field for our work on the financial consequences of divorce. The articles we wrote were characteristic of the law and economics scholarship of the era. We took the economic analysis of contract damages, applied it to the theory that justified spousal support, and reported on the insights it generated in critiquing the normative foundations of family obligations. In process, we did no empirical work, nor did we rely to any great extent on empirical work in our law review articles. Instead, we argued that contract theory, then dominated by economic analysis, accurately framed the normative choices judges and legislatures faced about such matters as the role of spousal support in the legal system and the likely impact of such choices on divorce rates.
Thirty years later, the intersection of law and economics looks quite different. Within both Economics and Law, abstract equations and arm-chair legal analysis, respectively, have given way to much more rigorous empirical work. Brinig, who is now at Notre Dame, obtained a Ph.D. in Economics and does empirical work informed by the type of questions lawyers ask about issues such as the role of custody rules on women’s inclination to initiate divorce or the response to domestic violence. I have found my own work less influenced by economics and more by sociology, as sociology offers a deeper qualitative analysis of the reasons for family decisions, particularly the class-based split in family form, fertility, and father involvement. Grossbard’s work reminds us that we have retreated to our disciplinary silos; while law professors cite other law professors who use economic or sociological methodologies, they have become less likely cite economists and even in the social sciences, imperial Economics has given way to a greater variety of methodologies, with proponents of each freer to ignore the work in other fields.
But what about Economics itself? What has happened to the economic analysis of family decision-making? And what lessons, if any, does the work of economists like Grossbard offer for Family Law? To answer these questions requires starting with the legacy of Gary Becker. Becker, a University of Chicago economist, won a Nobel Prize for his efforts to extend economic analysis generally and price theory in particular to nonfinancial realms such as crime, discrimination and the family. He is viewed as almost single-handedly creating the modern economic study of the family, and while law professors no longer spend much time on Becker, economists do. Virtually every economic article on the family starts by acknowledging the debt to Becker, even as these economists immediately go on to note that Becker’s major predictions were wrong and (cough, cough) we can now therefore ignore him.
Grossbard, who studied under Becker at Chicago, does something quite different. She wishes to reclaim Becker’s original work on the family, work that was more eclectic than the later efforts for which he is known, and to use his methodologies without the hubris that characterized his more famous pronouncements. Becker’s best known work, which Grossbard describes as one of the most frequently cited books in Economics (p. 8), is his 1981 Treatise on the Family. It describes a unitary model of family decision-making that rests on two widely criticized assumptions. The first is the idea that the benefits of marriage come from a gendered exchange between wives who “specialize” in cooking, cleaning and childrearing while their husbands specialize in “the market.” He predicted accordingly that higher earning women would be the least likely to marry and dual earner couples who brought home carry out dinners and hired others to clean the toilets for them would be less stable. The second is that, remarkably for an economist, he incorporated ideas of altruism into family decision-making. The problem is that he asserted that a presumptively male head of the family would value the interests of the entire family while an egotistic second spouse would place her own interests ahead of those of other family members. Becker’s critical predictions proved wrong – the only group in society whose marriage rates have increased are the highest earning women – and perhaps more importantly he proved tone deaf in describing the changing role of women and families in an era of greater gender equality. Moreover, he tends to be associated with neoliberal political prescriptions, some of which he enthusiastically embraced. While Becker’s work is more nuanced than his critics (and this brief description might suggest), it is easy for those who disagree to dismiss him altogether.
Within the economics of the family, however, Becker’s influence lives on. After all, he invented the field and even his critics acknowledge the debt they owe him. Grossbard begins her book by acknowledging his influence and attempting to refocus the field on the traditional subjects of economics. Her subtitle “How Marriage Markets Affect Employment, Consumption and Savings” emphasizes that marriage is a product of markets, and that market exchanges depend on prices. The book thus closely examines the factors that affect “price,” including gender ratios that alter the terms available to men and women who want a relationship with a member of the opposite sex. More fundamentally, though, she is interested in how market terms affect employment, consumption and savings. While Grossbard does not assume that marriage necessarily rests on a gendered exchange of men’s income for women’s services, she does see a trade-off, with some spouses investing more in household services than others (p. 181). Much of the discussion of employment and consumption (and to a lesser degree savings) in the book involves this tradeoff: how do we understand the factors that determine the terms of the exchange. In other words, if we see both paid employment and the consumption of domestic services as a product of markets, what determines their price? When does it make sense for a spouse to stay in the paid labor market, while hiring others to provide child care and domestic services, and when does it make more sense for a spouse to provide such services directly? This is the traditional subject of price theory and Grossbard attempts to reclaim the analysis as central to the economics of the family.
As someone who also wrote a book in 2014 on “Marriage Markets” (with Naomi Cahn), the part that immediately fascinated me was the discussion of gender ratios. Grossbard assembles data across the United States and finds that gender ratios do appear to validate some of the empirical predictions the theory suggests. She finds, for example, that holding other things constant, where men outnumber women in a given market, men’s labor participation increases and women’s declines, as men need a higher income to land a partner, and women find that they do not need to rely on the same degree on their own earnings (p. 8). These findings have deep implications. They suggest that gender performance, while not exactly the same as in the Ozzie and Harriet world of the fifties, is still alive and well. Moreover, she offers empirical support for the same conclusion we reached that these effects are greater for the better educated. The result contributes to the growing statistical portrait of class divergence in family formation practices, but without venturing very far into the possible explanations. Economics still resists any real discussion of class as either a cultural or economic construct.
For most of the family law world, however, her most interesting findings involve the effect of legal differences. Central to economic theory is the notion that an exchange of income for service requires trust; that is, protection of the vulnerabilities of a spouse who forgoes economic independence to contribute to the family. The marital exchange has historically required permanence in order to encourage that exchange. Yet, critics have also long noted that marital permanence came as well from women’s powerlessness in a system in which men can leave with their market-based resources intact while family-oriented women cannot. Grossbard relies on an updated version of these theories. By incorporating the tradeoffs into price theory, she suggests that they exist on a continuum. The issue is not whether women should invest in the home instead of the market (Grossbard’s interest in positive, not normative analysis). Nor is the question whether it is more “efficient.” Instead, the question is the entirely empirical one: to what degree does it occur? Her answer is that it depends in part on the extent to which the law protects the exchange.
Grossbard attempts to measure the effect by exploring jurisdictional differences. And one of her most intriguing chapters addresses common law marriage. As a general matter, one would expect unmarried cohabitants to forego paid labor to a lesser degree than married couples and most studies (again holding constant for other factors such as mothers’ income) find that to be true (p. 86). Grossbard asks a rarely pondered question: what about common law marriage? On the one hand, common law marriage extends to unmarried couples the same benefits as marriage if they show that they intended to be married. On the other hand, only a minority of states recognize common law marriage and it’s not clear that couples in common law marriage states know that the courts might treat them as married. Grossbard runs a statistical analysis of the difference in women’s workforce participation in common law marriage and non-common law marriage states and finds that the law matters (Chapter 7). Should we believe her?
The question goes to the heart of the differences between the ways that economists and law professors approach such issues. Roughly a decade ago, I moved from California to Missouri, to a neighborhood six blocks from the Kansas line. As a law professor I knew that Missouri did not recognize common law marriage while Kansas did. Yet, during the many discussions I had with my friends, colleagues and now adult children about where to live, the subject of common law marriage never arose. With State Line Road running through the middle of the metropolitan area, there was an awareness of legal differences; for one thing, liquor and gas taxes are higher on the Kansas side and so is the likelihood of being stopped for a minor traffic infraction. But not once did I hear a discussion of common law marriage, expect when I raised it in my family law class.
Grossbard finds that the state line matters. Her statistical correlations show that, holding constant for demographic and other measurable factors, in the states that recognize common law marriage, female cohabitants work less outside the home. Is she right? I have no doubt that her statistical analysis is correct. The question is whether she accurately captures the effect of the law or of differences among those states that recognize common law marriage versus those which do not. Grossbard has attempted to control for things like the ability to afford a house on the Kansas side of the state line and easily measured attributes such as race. The question is whether she can capture traits such as a preference for diversity (in which case one in more likely to live on the Missouri side) versus a preference for distance between neighbors (making Kansas residence more likely). It is hard to test for these differences, but they may well correlate with the issue of whether unmarried female cohabitants have more traditional versus progressive attitudes and thus work outside the home. On the other hand, she draws her data from a national sample, not just those unusual states whose borders transact a single metropolitan area.
This leaves Grossbard’s work as both simultaneously intriguing and frustrating. When I read Peg Brinig’s current work, I see questions informed by legal analysis, rooted in vocabulary to which law professors are responsive. When I read Grossbard’s work, I see questions framed by economists. As a family law professor teaching at a law school within a few blocks of a state line, I spent a lot of time wondering about what difference the state line – and the corresponding differences in family law – meant. Over time, I discovered that, at least then, second parent adoption was easier in Missouri while adoption without paternal consent was easier in Kansas, and that many people made very conscious decisions about where to live or give birth based on these differences. I am prepared therefore to believe that common law marriage also makes a difference. Yet, never being involved in a discussion of the issue, I remain a skeptic, though after reading Grossbard, that skepticism has moved from a conviction it did not make much difference to agnosticism about whether it might.
This ambivalence summarizes the current state of the interaction between law and economics. Grossbard is a true economist. She focuses on issues that have historically been the subject of economics such as price theory. She uses an empirical methodology associated with rigor in economics that is off-putting to lawyers (as least those of us who glaze over at extended discussions for regression analyses). She describes her theories in terms that do not necessarily ring through to lawyers, who are more focused on conscious thought processes than statistical correlations. Yet, Grossbard, whether right or not, should get us to think again about things we take for granted. Legal theorists assume that the law reflects different values. We further assume that it affects case outcomes. Does it also affect culture; that is, does it create feedback loops that reinforce behavior in ways that we cannot fully trace? Grossbard’s work, like that of other economists who try to map statistical correlations, challenges our intuitive understandings of causality. She suggests that the connections may not be at the conscious level and that we may not have figured at all the relationships between law and behavior. Her work is worth reading for that reasons alone.
Within the realm of family law and policy, there are two worthwhile ways to read her work. The first is quick and dirty. Read the introduction to the book and to the chapters that interest you. Look for the evidence she marshals that support your preconceived notions. It is excellent footnote material and along the way it may get you to think twice about some of your preconceptions, but it will be a quick read. For those more ingrained in empirical analysis, the question is how to translate Grossbard’s work into language that makes more sense to those of us engaged in family law. What part would be more persuasive with a minor change in vocabulary? And what part needs to be reconceived?
True interdisciplinary analysis requires something more than the simplification that law and economics, at its imperial height, promised. Instead, it involves genuine integration of different forms of analysis into a shared discourse. Law, as an applied field, offered the potential to supply the fulcrum that could integrate these various forms of analysis. Today, instead, we seem to retreating to our disciplinary silos, with J.D./Ph.D.s forced to choose the discipline in which they hope to make their mark. Grossbard’s work is economics – no question there. The issue is the terms on which her discussion of the law can be framed to challenge legal scholars to address the issue: does law matter and, if so, can we measure its impact?