Building the Bridge From Both Sides of the River: Law and Society and Rational Choice

Published in 2004. Law & Society Review 38: 207-212

Lee Epstein
Jack Knight

The introduction is below; click here for the article (.pdf).

Introduction

We begin by acknowledging the debt that we—indeed, all members of the Law & Society Association—owe to Lauren Edelman. Her effort to build bridges between law and society and law and economics is, at bottom, an effort to inject greater diversity into our research programs. As supporters of diversity on a number of grounds—not the least of which is that the greater the diversity of ideas contributed to the institutional process, the better the outcomes (Epstein, Knight, & Martin 2003)—we cannot help but applaud her attempt.

We also cannot help but take up her invitation to help build that bridge. Accepting that challenge requires us, at least as a first step, to clarify what the two approaches can and cannot do, which questions are better suited to one approach or the other, and how the approaches can best complement each other. These clarifications are necessary, we believe, because while Edelman does a nice job at capturing the standard understanding of law and economics, she perpetuates some common misunderstandings about more general rational choice approaches (especially strategic analysis) to the study of law. It is only by offering correctives to Edelman’s characterization that we can advance the bridge-building enterprise. That is because, as we hope to demonstrate, rational choice can contribute far more to the undertaking than Edelman suggests.

We develop this demonstration in three steps. We begin our article by delineating Edelman’s primary claims about the weaknesses of the law and economics account vis-a`-vis the law and society approach. As we explain in the second part, though, many of Edelman’s concerns about law and economics evaporate when we move away from standard law and economics and toward rational choice (and, again, especially strategic analysis). Finally, in the third part we turn to the question of what rational choice can bring to Edelman’s project and identify topics worthy of future inter-approach research endeavors.