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We are delighted to publish the papers from the symposium on social justice sponsored by the Center on Corporations, Law & Society of the Seattle University Law School. These papers address an impressive array of business and social issues and provide a penetrating assessment of whether existing legal doctrines and approaches promote social justice. True to the theme of this series, the authors frequently utilize economic analysis, but they also point out where they think it does not apply or needs to incorporate new developments. The exceptional quality of this volume reflects the distinguished credentials of the authors, the extraordinary efforts of the Special Editor, Dana Gold, the former director of the Center, and the support of the Dean of Seattle University Law School, Kellye Testy.

In the Fall of 2006, the Center on Corporations, Law & Society (CCLS) at Seattle University School of Law, in collaboration with Professor Jack Kirkwood, co-editor of this Research in Law and Economics book series, hosted a symposium to explore the relationship between law and economics principles and the promotion of social justice. CCLS has a robust history facilitating scholarship about the role corporations and corporate law plays in promoting, as well as undermining, social, economic, and environmental justice, having organized numerous conferences with published proceedings on topics connecting corporate law and governance to health care,¹ first amendment protections,² business ethics,³ and diverse progressive social movements, including environmental activism, worker rights, racial justice, and electoral democracy.⁴ Given that corporations play such a dominant role in almost every aspect of society, and given that much of governing corporate law doctrine and theory derives from neoclassical law and economics, the theme of the symposium, Law and Economics: Toward Social Justice, was both natural and fundamental to CCLS's work. This book-volume is a collection of the papers accepted for presentation at the symposium and revised for publication.

Marriage is often compared to a “contract.” This analogy purports to proceed from a settled concept called “contract,” under which legitimate obligations derive from consent. The analogy creates confusion when applied in the legal context. In law, “contract” refers to a broad category of legal obligation. Many legal theorists believe “contractual” enforceability should be based solely on consent. But as a matter of positive legal doctrine, consent is neither necessary nor sufficient to establish enforceability. A contract's enforceability also depends on its relationship to public welfare.

Thus the “contract” analogy does not constitute a legal justification for an approach to marriage based solely on the consent of the parties. It merely expresses a normative preference for a consent-based approach. The chapter illustrates this point using examples of current marriage-related issues, such as covenant marriage, prenuptial agreements, and same-sex marriage.

Why do so many African Americans get stuck near the bottom or at the middle of the corporate ladder? Why do so many continue to complain about discriminatory pay and promotion decisions many decades after the enactment of anti-discrimination laws? Law and economics commentators who have written about the issue of employment discrimination have failed to address the complexity of the problem of implicit bias and the effects of the frequently inaccurate heuristics used by some white workers when making judgments about their black colleagues. Economic theory without context is useless. But with context, law and economic analysis can help us understand and address specific problems like workplace discrimination that persist within corporate cultures because of an overestimation of the cost of anti-discrimination efforts and an underestimation of the gravity and likelihood of workplace discrimination.

In this chapter, I explore the economic and socioeconomic reality of African American low and mid-level corporate managers in order to capture a more complete picture of the costs of discrimination in the corporate workplace. I also explore the heuristic assumptions that are made about African American professionals and the effects those assumptions have on the black community. Finally, to understand the gravity of the harm to individuals, their families and the communities to which they belong, narratives about the economic and psychological harm caused by discrimination are essential. I offer the narratives of six middle managers and low-level professionals who faced discrimination in the corporate workplace to provide an important context about discrimination's real costs.

This chapter incorporates gender consciousness into critiques of the rational actor model by revisiting Carol Gilligan's account of moral development. Economics itself, led by the insights from game theory, is reexamining trust, altruism, reciprocity, and empathy. Behavioral economics further explores the implications of a more robust conception of human motivation. We argue that the most likely source for a comprehensive theory will come from the integration of behavioral economics with behavioral biology, and that this project depends on the insights from evolutionary analysis, genetics, and neuroscience. Considering the biological basis of human behavior, however, and, realistically considering the role of trust, altruism, reciprocity, and empathy in market transactions requires a reexamination of the role of gender in the construction of human society.

First, we revisit Gilligan, and argue that her articulation of relational feminism faltered, in part, because she could not identify the source of the stereotypically feminine. Second, we consider the ways in which the limitations of the rational actor model meant that law and economics could also not resolve the relational concerns that Gilligan raised. Third, we discuss the rediscovery of gender that is emerging from the gendered results of game theory trials and the new research on the biological basis of gender differences. Finally, we conclude that incorporating the insights of this new research into law and the social sciences will require a new methodology. Instead of narrow-minded focus on the incentive effects in the marginal transaction, we argue that reconsideration of stereotypically masculine and feminine traits requires an emphasis on balance.

The essay points out a common thread that runs through law-and-economics business law scholarship. Working largely independently of each other, economically oriented scholars working in different areas have argued that the law should focus on the interests of a single constituency – shareholders in corporate law, creditors in bankruptcy law, and consumers in antitrust law. Economic analysts thus have rejected arguments advanced by “progressive” scholars working in each of these areas that the law should instead concern itself with the full range of constituencies affected by business activity. The law-and-economics single constituency claim rests in part on skepticism about judicial competence, but the underlying premise is an objection to the use of law for redistributive purposes. The primary value is efficiency, defined in terms of market-generated outcomes. It is argued here that this political commitment implies a strong tendency toward maintenance of the existing distribution of wealth, and that even more importantly, the single constituency claim may actually have redistributive implications. In each of these areas of business law, however, a regressive program favors owners of capital against those who are generally less well off, such as workers and small-business owners.