From Contract to Covenant

This book is the first systematic account of the law and economics of the family. It explores the implications of economics for family law—divorce, adoption, breach of promise, surrogacy, prenuptial agreements, custody arrangements—and its limitations.

Before a family forms, prospective partners engage in a kind of market activity that involves searching and bargaining, for which the economic analysis of contract law provides useful insights. Once a couple marries, the individuals become a family and their decisions have important consequences for other parties, especially children. As a result, the state and community have vital interests in the family.

Although it may be rational to breach a contract, pay damages, and recontract when a better deal comes along, this practice, if applied to family relationships, would make family life impossible—as would the regular toting up of balances between the partners. So the book introduces the idea of covenant to consider the role of love, trust, and fidelity, concepts about which economic analysis and contract law have little to offer, but feminist thought has a great deal to add. Although families do break up, children of divorce are still bound to their parents and to each other in powerful ways.