Table of Contents

Collective Coercion

Benjamin Means, University of South Carolina School of Law
Susan S. Kuo, University of South Carolina - School of Law, University of Iowa - College of Law

Divorce and the Serial Monogamist: The Ex Ante Costs of Legalized Polygamy

Michael J. Higdon, University of Tennessee College of Law

Will-Making Prevalence and Patterns in Australia: Keeping It in the Family

Cheryl Tilse, University of Queensland
Jill Wilson, University of Queensland
Ben White, Queensland University of Technology - Australian Center for Health Law Research
Linda S. Rosenman, University of Queensland
Rachel Feeney, University of Queensland


LAW, NORMS & INFORMAL ORDER eJOURNAL

"Collective Coercion" Free Download
Boston College Law Review, Forthcoming

BENJAMIN MEANS, University of South Carolina School of Law
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SUSAN S. KUO, University of South Carolina - School of Law, University of Iowa - College of Law
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When a collective-choice situation places coercive pressure on individual participants, the law’s traditional protection of individual autonomy against coercion must be reconciled with its necessary role in resolving problems of collective action. On the one hand, the law might seek to remove coercion from the equation so that individuals are free to make their own decisions. On the other hand, the law might empower a central authority to decide, thereby solving a problem of collective action in order to maximize the group’s shared interests.

The tension between these two approaches creates deep uncertainty for the regulation of collective-choice situations. It is palpable in the law’s conflicted response to corporate takeover bids in that applicable federal and state laws simultaneously enhance and diminish shareholder choice. Elsewhere — for example, the structure of government buyout programs, or the imposition of mandatory fees for nonunion employees — the intersection of coercion and collective choice may be overlooked altogether. By situating the literature on coercion in the context of offers that exploit collective-action problems, we propose a unifying framework for identifying and remedying what we have labeled collective coercion.

"Divorce and the Serial Monogamist: The Ex Ante Costs of Legalized Polygamy" Free Download

MICHAEL J. HIGDON, University of Tennessee College of Law
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The question of whether the fundamental right to marry might also include the right to polygamy is one that has long intrigued legal scholars. In the wake of Obergefell v. Hodges, that question has taken on even greater significance. Although other scholars have attempted to answer this question, this Article does so in a novel way. Specifically, this Article looks at the practice of polygamy through a law and economics lens, exploring the ex ante consequences of legalization, not on practicing polygamists, but on serial monogamists — i.e., those who never intend to have more than one spouse at any given time but are, nonetheless, prone to marry more than one person in their lifetime. When looked at in that manner, the degree to which legalized polygamy would harm the state becomes much more evident. After all, if polygamy were legal, the current laws prohibiting bigamy would no longer be in operation. In turn, separating couples would lose one of the strongest incentives they currently face to pursue formal divorce in lieu of simply deserting one another. In essence, then, a serial monogamist could marry multiple times in his lifetime without ever getting a divorce, safe in the knowledge that his actions are no longer subject to a criminal charge of bigamy. Such actions — dubbed “sequential polygamy? — are quite harmful to the state’s substantial interest in protecting its citizens from financial harms. Indeed, the current law of divorce is designed to encourage separating couples to elect that formal course of action so as to provide the state some assurance that those leaving a marriage are not doing so to their financial detriment. With the legalization of polygamy then, goes the prohibition against bigamy, thus eroding the state’s ability to encourage divorce as a means of protecting all its citizens; but in particular its poorest citizens, who would likely be hardest hit by any societal shift away from formal divorce.

"Will-Making Prevalence and Patterns in Australia: Keeping It in the Family" 
Australian Journal of Social Issues, 50(3), pp. 319-338, 2015

CHERYL TILSE, University of Queensland
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JILL WILSON, University of Queensland
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BEN WHITE, Queensland University of Technology - Australian Center for Health Law Research
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LINDA S. ROSENMAN, University of Queensland
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RACHEL FEENEY, University of Queensland
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This article provides evidence of the prevalence of wills and the principles underpinning the intended distribution of estates in Australia. Intentions around wealth transfers and the social norms that underpin them occur in the context of predicted extensive intergenerational transfers from the ageing baby boomer generation, policies of self provision and user pays for care in old age, broader views on what constitutes ‘family’, the increased importance of the not-for-profit sector in the delivery of services, and the related need for philanthropy. A national telephone survey conducted in 2012 with 2,405 respondents aged 18 and over shows that wills are predominantly used to distribute assets to partners and/or equally to immediate descendants. There is little evidence that will makers are recognising a wider group of relationships, obligations and entitlements outside the traditional nuclear family, or that wills are being replaced by other mechanisms of wealth transfer. Only a minority consider bequests to charities as important. These findings reflect current social norms about entitlements to ‘family’ money, a narrow view of what and who constitutes ‘family’, limited obligation for testators to recompense individuals or organisations for care and support provided, and limited commitment to charitable organisations and civil society.

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About this eJournal

This eJournal distributes working and accepted paper abstracts concerning the interaction of formal and informal order. Topics include social and group norms, conventions, customs, customary law, folk law, legal pluralism, private organizational rules, civil society, self-enforcing contracts, informal sanctions (such as gossip, shame, and guilt), self-help (including feuds), and the origins of law and legal institutions.

Editor: Richard H. McAdams, University of Chicago

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Advisory Board

Law, Norms & Informal Order eJournal

LISA E. BERNSTEIN
Wilson-Dickinson Professor of Law, University of Chicago - Law School

JOHN BRADFORD BRAITHWAITE
Australian Research Council Federation Fellow, Australian National University (ANU) - Research School of Social Sciences (RSSS), School of Regulation & Global Governance (RegNet)

ROBERT C. ELLICKSON
Walter E. Meyer Professor of Property and Urban Law, Yale Law School

SALLY ENGLE MERRY
Marion Butler McLean Professor in the History of Ideas, Wellesley College - Department of Anthropology

DAN M. KAHAN
Elizabeth K. Dollard Professor of Law & Professor of Psychology, Yale University - Law School

PAUL G. MAHONEY
Dean, University of Virginia School of Law

PHILIP N. PETTIT
L.S. Rockefeller University Professor of Politics and Human Values, Princeton University - Department of Political Science, Australian National University (ANU) - Research School of Social Sciences (RSSS)

ERIC A. POSNER
Kirkland and Ellis Professor of Law, University of Chicago - Law School

ERIC BENNETT RASMUSEN
Dan and Catherine M. Dalton Professor, Indiana University - Kelley School of Business - Department of Business Economics & Public Policy

CHRIS WILLIAM SANCHIRICO
Samuel A. Blank Professor of Law, Business, and Public Policy, University of Pennsylvania Law School, University of Pennsylvania Wharton School - Business Economics and Public Policy Department

STEVEN SHAVELL
Director, John M. Olin Center for Law, Economics, and Business, Samuel R. Rosenthal Professor of Law and Economics, Harvard Law School, National Bureau of Economic Research (NBER)

THOMAS S. ULEN
Swanlund Chair, Director, Illinois Program in Law and Economics, University of Illinois College of Law

JAMES Q. WHITMAN
Ford Foundation Professor of Comparative and Foreign Law, Yale Law School