Legal liability and cuckoldry

This is a homework assignment I did for Law & Economics. The assignment was about legal liability for cuckoldry. I am posting it here not because I believe in it wholeheartedly or think it’s a great analysis, but because it came out drastically differently than I expected it to.

Keep in mind that law & economics is concerned with analyzing the efficiency of the law, not with philosophical concepts of justice and the like. From a justice-based perspective, I think this would have gone pretty far in the other direction, but thinking about efficiency helps to explain why it is the way it is, not how it should be.

Also, I had to keep it under a certain length, so some things that may be controversial or in need of further explanation did not get the full treatment.


The law that currently applies to cuckolded men is that once they have taken on the role of a father in a non-biological sense (i.e. raising children, contributing money to their upkeep, etc.) they are obligated to continue in some way if the man and woman are married. If they are unmarried there is slightly more room for exit on the part of the male, but the principle is similar. There are, of course, variations from state to state, but this model prevails overall. In some states, the male may sue the female to recover funds, but this is limited.

The efficiency of this law rests on the long-standing premise that the people who should be protected by the law are children first and women second; hence, males who divorce their spouses (after making this discovery or not) still typically owe child support, and this is an efficient way to see that the children are still cared for until adulthood. However, the goals to be served efficiently are made in response to other, broader circumstances. For example, if all children were supported by manna from heaven, there would hardly be much need for child support payments from divorced men. Family law in the United States mainly derives from periods long since buried in history, before the welfare state and before women had the kinds of economic opportunities they have now, and perhaps there are more efficient ways to see that children are looked after in the 21st century.

It’s clear that the care exercised in this situation is almost entirely at the discretion of the mother. (If she is pregnant as a result of rape, this is a different issue and should lead to an entirely different set of legal concerns and channels for resolution.) This was not very observable in most cases before paternity testing, and even now is only observable after a gap of a few months at minimum. Before this care was knowable it made sense not to hold suspected mothers liable for cuckoldry in the interests of protecting children, but now that the care is knowable it is easy to know mothers are liable. Except in cases of rape as noted, pregnancy does not happen without preventable action on the part of the mother. The incentives for care on the part of the mother before paternity testing were much more limited than they would be with paternity testing in which the mother is held liable for cuckoldry; in the present legal regime, these incentives are somewhere between, closer to the older case.

If paternity test technology had been available in, say, the 1920s, there still might have been a case for making cuckolded fathers pay (when the biological father could not be located) because the mother in most cases would not have been able to provide for them on her own. However, today, this problem has been somewhat mitigated. There are more women participating in the official labor market than when these laws were initially framed, and the wage gap has decreased. In the worst case, the mother would have to depend on various welfare programs which were not available when this body of law was shaped. Though this seems undesirable, tens of millions of people already do so without the law attempting to intervene to prevent them from doing so.

Let us suppose that the law were changed such that cuckolded men could cease child support (and other non-monetary support) and sue their wives for damages. This would certainly incentivize greater care on the part of mothers. This threat would probably be sufficient for the majority of prospective mothers, but the minority who failed to respond as predicted would be an interesting legal issue. These would be the low-conscientiousness types that behavioral economics makes so much of lately. Not only would they by assumption fail to exercise care in becoming pregnant by men not their husbands, but they would likely have few resources of their own for child care, much less for paying damages to their cuckolded husbands. They could be threatened with jail time, but by and large will probably have little to contribute.

It’s important at this point to consider the magnitude of the phenomenon. Estimates vary, but it seems that something around 3% of births may be of interest for our present discussion. If we assume that ⅔ of women will exercise greater care under threat of liability for damages, we’re still left with ⅓ who will not, and it’s likely that this is the end of the spectrum that will contain most of the women who are unable to provide for children on their own. Approximately 1% of children being potentially unprovided for (except for welfare programs) does not necessarily seem like a massive social problem, especially against other, similar social issues like children born to single mothers on welfare in general.

So far I have not mentioned the other element of the equation: the biological father. It is probably correct to say that cuckolded men tend to have more resources to contribute to child rearing than the biological fathers at issue here. Supposing the law were to make paternity testing mandatory, this may not have much effect anyway; if the biological fathers cannot pay, the social problem isn’t really solved, and by only slightly controversial postulate the biological fathers will usually not be able to pay. There is some endogeneity here, however: if cuckolds could sue their wives for damages, the wives would have much more incentive to try to collect resources from biological fathers, who would then have more incentive to raise funds (or to avoid the situation before the fact). Working out punishments such that it would be preferable to pay child support rather than take the punishment is in principle doable. Still, there would be less provision for children than in the current scenario, even if by a small percentage.

In the worst case, when neither the cuckold nor the biological father contributes resources to the children, the slack would be taken up by welfare programs. As the mothers in this case are already the least conscientious, they will likely contribute little directly. This is undesirable for a number of reasons, although single mothers on welfare currently exist in great numbers already so it’s not clear that this is a high-priority social problem.

There may be a case for some “nudging” in making prenatal or immediate post-birth paternity testing part of the standard suite of procedures performed. This is surely an awkward time for a prospective father to ask, many tests are already being done, and the marginal cost of one more relatively inexpensive test makes it a good idea. If this were standard procedure, cuckolds would be able to deny paternity before most of the expenses were incurred. Knowing this, women would be incentivized to avoid the situation as well. Having it be standard practice would be a greater deterrent than paternity testing currently is; when every expectant couple is aware of this milestone, it will form part of their plans. Surely the costs of litigation and monitoring for child support actions are very great drain on the public purse comparable to the medical costs this would engender.

An added benefit to this would be counseling at the hospital for cases like this. Hospitals have little incentive to care about this directly, but the fact that they would be on the front lines would lead to some kind of established protocol rather than the haphazard legal approach now. At the very least, they would accumulate a reference list of specialists. In the thought experiment where paternity testing becomes standard but without any other changes postulated, this in itself may lead to better clarification of the law in this regard.

Overall, however, it seems that the law does not really care how children are provided for, just that they are. The situation currently obtaining may be unsatisfactory, but it is not clear that there is any more efficient way to accomplish this goal.

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Football and Law & Economics

Rule 12 Player Conduct
Section 2 Personal Fouls
GRASPING FACEMASK
Article 5 No player shall twist, turn, or pull the facemask of an opponent in any direction.
Penalty: For twisting, turning, or pulling the mask: Loss of 15 yards. A personal foul. The player may be disqualified if the action is judged by the official(s) to be of a flagrant nature.

So say the official NFL rules. Note that “flagrant” violations may receive extra penalties; even unintentional violations are penalized. The motive is obvious: the infraction can seriously hurt a player.

If you understand this penalty, you already understand two of the important principles of the field of law & economics. There are certain things we want to discourage in the interests of society, and some of these things fall within the scope of the law, broadly defined. (We’d also like to discourage other things, for example being a generally negative person, but this is outside the scope of the law.) In criminal law there must be some level of mens rea (“guilty mind”), but in civil law, the component of the law that deals with dispute resolution, mens rea is not necessary. Penalizing actions that cause harm even when performed unintentionally induces a greater level of care among people who might possibly perform the act in the future. The facemask rule was introduced in 1956. Unfortunately, little game footage survives from this period, but it’s easy to see that once players were told about the new penalty they would take greater care to avoid accidentally committing the infraction, even though it always happens within a matter of seconds, in the heat of the moment. I have yet to see a facemask violation that seemed intentional. But even unintentionally it can cause great harm to a player, so it still needs to be discouraged.

That is the first principle of law & economics you might already intuitively understand. The second is that “law” does not simply refer to legislation passed by the US Congress or its equivalents in other countries. The law in football is codified in the NFL Rulebook and enforced by the NFL, not by any government. The law at your workplace overlaps with government law, but not entirely; there is still some internal process for resolving many workplace disputes, even if it is fairly informal. It would be absurdly inefficient for government at any level to involve itself with facemask penalties or which stapler belongs to whom.

Law & economics is a broad and rich field. I don’t mean to suggest that all of its principles can be understood without delving into the literature. But it is not ivory tower stuff. Its logic applies all over the sphere of human activity. Read more here.