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

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 analysis1) to the study of law. It is only by offering correctives to Edelman's characterization athat 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. Edelman's Claim about the Distinctiveness of the Law and Society Approach Among the many possible sources of dialogue between law and society and economic approaches, Edelman identifies one: "how an understanding of the social and political underpinnings of economic rationality might inform sociolegal scholarship, LE that it ought instead to take its cues from law and society and draw attention to "to the social, political and legal construction of rational economic behavior and to the economic construction of law" (Edelman 2004:184, emphasis in original). The take-away from the conversation is clear: We should, as Edelman puts it, "replace LE rather, it suggests that we can best understand individual action in the social context in which it occurs. Rationality, in other words, may differ across social contexts, and law and society is better at tackling these differences. …