Much like the taxi cartels of the land, family courts ought to be vulnerable to disruption by nimble, low-overhead competition. Apologies for dragging out a worn meme, but where's the Uber, but for the dissolution of marriage? A standardized, opt-out pre-nup a la Thaler/Sunstein seems like it should be a slam-dunk. What's not to love about freeing up courthouse resources and liberating people during a difficult period of transition?
- Prospect Theory. Newlyweds overestimate the bliss they'll obtain from a lifetime of marriage and underestimate the costs and deadweight losses of divorce. They also overestimate the probability their marriage will survive.
- Defection. Courts are predisposed to honor prenuptial agreements, but widespread adoption of new default prenup terms is out-of-sample. I don't know how likely it would actually be for courts to declare such agreements invalid, but such risks should make potential customers think twice.
- Signaling. The dreadful inefficiency of the present system serves a purpose not all that different from an engagement ring: I am exposing myself to this excruciating downside risk; see how serious I am over here, pumpkin? If this is an important enough signal, any efficiency gains from a standardized pre-nup should be captured elsewhere. Instead of 2 months' salary for a polished stone, maybe it's 6. TANSTAAFL.
- Transitional gains. Perhaps there truly is a preferable equilibrium that doesn't rely on an albatross in a black smock and powdered wig. But if it's a stag hunt game, being the oddball who solicits this new product signals unacceptable nonconformity. Given the preposterous peacockery of the modern Western wedding ceremony, there is at least some evidence that fear of violating the expectations of tying the knot can produce wasteful behavior.
- Inertia. Mom and dad didn't get a pre-nup. Neither are we. It ain't in the heuristic toolkit.
In the grip of my periodic melancholy, I fancy that point #1 up there is the only thing preserving the institution of marriage for the median American. If folks were perhaps a bit more rational, they might reconsider how strong their instincts for regret aversion should be.
Gordon Tullock's famous advice for transitional gains traps is: "don't set any." In this case, one wasn't set. It just sort of crept up. How to break an emergent state monopoly? Tough question.