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.