About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

88 Yale L.J. 950 (1978-1979)
Bargaining in the Shadow of the Law: The Case of Divorce

handle is hein.journals/ylr88 and id is 966 raw text is: Bargaining in the Shadow of the Law: The Case of Divorce* Robert H. Mnookint and Lewis Kornhauser$ This article suggests an alternative way of thinking about the role of law at the time of divorce. It is concerned primarily with the impact of the legal system on negotiations and bargaining that oc- cur outside the courtroom. We see the primary function of contem- porary divorce law not as imposing order from above, but rather as providing a framework within which divorcing couples can them- selves determine their postdissolution rights and responsibilities. This process by which parties to a marriage are empowered to create their own legally enforceable commitments is a form of private ordering.' * Copyright 1979 by Robert H. Mnookin. This article has its roots in collaborative research begun in 1976, when Professor Mnookin's research was supported by grants to the Childhood and Government Project from the Ford Foundation and the Carnegie Corporation of New York, and Professor Kornhauser was a graduate student in law and economics at Berkeley. Early drafts were presented at the Workshop in Law and Economics at the University of Chicago Law School, the Legal Theory Workshop at the Yale Law School, and at seminars at the University of California, Berkeley. The article was completed while Professor Mnookin was on sabbatical at the Centre for Socio-Legal Studies, Wolfson College, Oxford during the fall of 1978. He wishes to thank his colleagues at the Centre, especially John Eekelaar, for helpful comments and suggestions. On November 16, 1978, Professor Mnookin delivered the penultimate version of this article as a lecture at University College, London; this version will be published separately by him as part of that lecture series in Current Legal Problems. Many people made helpful comments and suggestions while this article evolved. Special thanks are owed to Robert Cooter, Melvin Eisenberg, Stephen Sugarman, Jan Vetter, and Michael Wald. t Professor of Law, University of California, Berkeley. + Assistant Professor of Law, New York University School of Law. + 1. Professors Hart and Sacks have written: Every society necessarily assigns many kinds of questions to private decision, and then backs up the private decision, if it has been duly made, when and if it is challenged before officials. Thus, private persons are empowered, by observance of a prescribed procedure, to oblige themselves to carry out certain contractual undertakings, and, if dispute arises, to settle their differences for themselves. So may a host of other matters be settled which are immediately of private, but potentially of public, con- cern. In a genuine sense, these procedures of private decision, too, become institu- tionalized. An understanding of how they work is vital to an understanding of the institutional system as a whole. H. Hart & A. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 7 (tent. ed. 1958). A definition of private ordering attributed to Professor Fuller is law that parties bring into existence by agreement. On the continuity between the social processes of negotiation and adjudication, see Eisenberg, Private Ordering Through Negotiation: Dispute-Settlement and Rulemaking, 89 HARV. L. REv. 637 (1976). 950

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most