TY - JOUR
AU - Shmueli,, Benjamin
AB - Abstract Various incentives may be used in order to cause a person to desist from creating negative externalities. Both carrots and sticks have advantages and disadvantages. Literature is familiar with various combinations between them. In most cases, the mechanism is “horizontal”: using carrots with respect to certain parts of the population, and sticks against others. The article presents a novel, vertical mechanism, in the form of a “game” played in two consecutive stages that trap the damager within the mechanism. At the center of the first stage of the mechanism stands a “carrot,” which is money offered for the damager in order for him/her to desist from the evil, combined with a type of a stick, which is a social sanction (shaming). At the center of the second stage, which is activated only if the first stage did not succeed, stands a “stick,” which is a civil action that can be brought against the damager if s/he does not take the carrot offered to him/her in the first stage. The objective: to incentivize a person to engage in fruitful negotiations to end harmful activity at the pre-mechanism stage. To illustrate this, the article draws on negative social behavior of one-sided refusal to give/accept the divorce bill (get) in the Jewish sector the world over. The mechanism will be built primarily on the basis of a few law and economics theories. A dialogue will thus be created with these theories in fields where they are rarely applied. The main argument is that the use of a vertical setup increases efficiency at a minimal additional cost, overcomes a moral problem, and optimally combines the resulting advantages by deploying sticks and carrots, and at the same time neutralizes most of the disadvantages of either of them. 1. Introduction A person performs an action vis-à-vis another and causes a negative externality. Society, and the law as an agent of society, are interested in stopping him from performing this negative action. What is the most suitable tool for doing so? Will the threat of a stick be the most efficient tool for putting a stop to the harmful action? Or will the offer of a carrot—a reward or a positive incentive—motivate them to desist from the negative action? Alternatively, will the best course of action in such a case be to combine carrots with sticks? These and other questions will be examined in this article, through the test case of a refusal to divorce in the Jewish sector from a global perspective. The insights that will be presented will apply to other cases that are not necessarily connected to intra-familial relationships. Hence, the article will present the case of refusal to divorce in the Jewish sector as a test case for using different incentives in the legal arena in order to try to solve this problem and make recalcitrant spouse stop their refusal—sticks, carrots, and hybrid mechanisms. Some of these solutions exist in practice in different countries and some are desirable; the latter are based primarily on theories of law and economics. The article compares the different incentives in order to try to understand when it is better to use sticks, when it is better to use carrots, and when one should seriously think of combining these two different types of incentives in order to reach the best and most efficient outcome under the circumstances; in the test case, the desired outcome is to stop a refusal to divorce and try to discourage refusal from the outset. Let us begin with a brief overview and explanation of the carrots-and-sticks mechanism and its effect and potential and practical role in the field of incentives in the legal arena in general, and in stopping negative externalities such as in the test case of refusal to divorce in particular. Gerrit De Geest and Giuseppe Dari-Mattiacci explain that due to the difficulty of defining the carrots-and-sticks method with precision, insufficient normative attention is paid to the use of carrots versus sticks.1 In the authors’ opinion, carrots and sticks are not merely mirror images of one another;2 however, they nevertheless propose the following definition: Carrots and sticks are both transfers of wealth that induce the citizen to comply with a rule. A carrot is a payment to the citizen (by the lawmaker) that is made if the citizen has been monitored and found complying. A stick is a payment by the citizen (to the lawmaker) that is made if the citizen has been monitored and found violating.3 At the same time, this article will discuss a more complex case of an attempt to put a stop to a negative action that has already begun. In this case, if the choice is made to use the stick, then indeed its use is consequent upon a violation of the law; if, however, the carrot method is chosen, it must be understood that a carrot is not offered here as a prize for complying with the law, but for desisting from violation of the law (although desisting from violation is also a beginning of compliance with the law). Similarly, the enterprise in this article will be broader, i.e. to examine the use of tools that are not necessarily governmental; for instance, a civil suit for compensation brought by the victim against the person performing the negative externality is an example of the private use of a stick (although the action is adjudicated in the state courts). The stick, too, is not necessarily a governmental one, although in many cases, as discussed below, use of sticks and carrots takes place in a governmental context, for example the use of subsidies as opposed to fines in various contexts. Brian Galle explains that choices between carrots and sticks are typical of various facets of our lives, even though the classical case in which these choices are made is nuisance and environmental regulation; in fact, these choices present themselves for discussion wherever the mechanism of the costs outweighing the externalities is used.4 Below, however, private mechanisms for awarding carrots for the purpose of creating an incentive to desist from negative behavior or to prevent it in advance will also be examined. Therefore, broader definitions must be examined, which are suitable for cases of terminating a negative action as well as treatment that is not necessarily governmental. Galle himself defines carrots and sticks more broadly than De Geest and Dari-Mattiacci: although it still remains in the governmental arena, it brings the differences between the carrot and the stick into a sharper focus.5 However, the question of what is preferable or more effective, the stick or the carrot, in order to incentivize a person to do good and cease wrongdoing is disputable.6 In the social sciences literature there are varied examples of positive or negative incentives that succeed in reducing the incidence of certain negative behaviors or motivations to adopt such behaviors, even if only in the short term; there are also opposite examples.7 Alongside claims that from the point of view of efficiency, there is no difference between carrots and sticks, there are those who argue that the effects, not only moral but also economic, of carrots are different from those of sticks, and that generally the use of carrots is not sufficiently effective and it is also incompatible with justice and a proper distribution of wealth.8 At the same time, there are many who claim that sticks tend to be more effective than carrots, and therefore are preferable in general, and in the legal system in particular,9 and that the effectiveness of a frequent use of carrots is limited to a small number of situations.10 Similarly, some scholars argue that carrots encourage moral hazard, i.e. they encourage people to act in an undesirable way in the future in order to obtain money to desist from the wrongful action, thus encouraging others to create similar future negative externalities in the hope of receiving payment to desist;11 while others argue that there are nuances and factors which render carrots preferable.12 It is notable that even though legal systems traditionally rely primarily on sticks,13 there are indications that in recent years they, too, are moving over to the use of carrots in various areas.14 In the framework of this article it is not possible to cover the entire field of incentives and compare a full range of sticks-and-carrots mechanisms.15 The article will examine whether, in the test case of attempting to terminate negative activity whereby a spouse refuses to divorce, in a religious context that does not allow the spouse to be freed from a broken marriage, the better instrument of persuasion is a stick, a carrot, or some hybrid mechanism. The contribution of the article to the literature on incentives will lie in the presentation of a model that combines carrots and sticks in a manner that is not very common, and opens a window onto consideration of use of such a model in other areas as well. This model will draw ideas mainly from theories of law and economics, which play a significant role in the field of economic incentives, but only a very minor role in family matters, and this will be a good opportunity to connect the fields in an innovative manner. The model will also suggest including a social sanction—a type of stigma—in the model which combines carrots and sticks, doing so in a way as to achieve optimal efficiency. In Section 2, the test case of refusal of divorce in the Jewish sector will be presented. In Sections 3 and 4 the stick and carrot solutions will be presented, and Section 5 will compare the two. Section 6 discusses ways of combining the sticks and the carrots, as an offshoot of theories of law and economics. The article will offer new insights into our understanding of the effects and the functioning of sticks, carrots, or combinations of them. It will deal with a real-life application of a specific, marriage-law-related issue of carrots and sticks, but it allows for applications beyond those matters. 2. Test case: Sticks versus carrots in combatting refusal to divorce The reality of Jewish religious divorce brings with it a painful, worldwide problem of refusal to divorce, namely get-refusal (a get is a Jewish bill of divorce). The refuser aims at extracting a financial benefit in return for his consent to give a get. The rabbinical court—either private, acting as an arbitrator, which is the situation in most countries, or governmental, acting by virtue of state authority in Israel, where there is no separation between religion and state, and religious law governs personal status16—can do nothing except order the divorce; it can issue a divorce decree only with the consent of both parties or based only on a recognized ground for divorce. The ruling is not constitutive; it does not create the divorce.17 Private rabbinical courts lack enforcement powers, whereas state rabbinical courts in Israel use the enforcement power available to them by virtue of the law only sparingly, for fear that the get that will be given as a result of financial pressure on the husband (“monetary compulsion”) will be considered unlawfully coerced and therefore invalid, since the husband must consent to give the get of his own free will.18 The Halakhah (i.e. Jewish law) permits a series of steps to be taken to enforce the get after an order has been issued compelling the husband to give the get, and in some states these have been fashioned into modern sanctions which affect the liberty of the refuser and his property (e.g. imprisonment, solitary confinement, stay of exit order); however, even the Halakhic tools which may be used by the rabbinical court to compel are limited, and, for various reasons, the rabbinical courts do not invoke these enforcement sanctions sufficiently.19 In any case, there is no consensus among the rabbinical decisors about a major Halakhic way of solving the problem.20 Therefore, it is necessary to think outside the box of religious-family law for a solution. Releasing a woman from the chains of her marriage is an important social and human mission. It is difficult to watch the state—even one in which there is a separation between church and state—standing by: non-intervention sends out the problematic social message that a person who is being harmed and exploited does not merit active aid on the part of the state, particularly if the state makes it possible, one way or another, to contract a religious marriage. It should be mentioned that there are also husbands who become victims of get refusal, even though the situation is not completely symmetrical.21 In several jurisdictions (such as New York State), which uphold civil marriage, special get laws have been enacted.22 This is a specific local solution that has not been adopted globally, and it cannot constitute a universal solution for different reasons. There exists an abundance of literature on the subject of get refusal which outlines the problem and attempts to find various Halakhic solutions23 as well as private law and other legal solutions.24 The basic assumption is that get refusal is a negative act which has only negative externalities, and it causes the victim emotional distress: humiliation, a breach of autonomy, inability to marry, inability to bear children (for the children of the (female) victim of get refusal from another man will be considered illegitimate (mamzerim) according to Jewish law), and inability to engage in sexual relations.25 But the negative externalities exist not only in the eyes of modern law. Jewish tradition regards the get refuser as a sinner against both God and man. According to Maimonides, the reason that a husband may be physically coerced to provide his wife with a get when ordered to do so by a Jewish law court (Beth Din), the Halakhic requirement that the get must be given, the husband’s free will notwithstanding, is based upon the idea that the blows administered to the recalcitrant husband eventually free him of his evil inclination to disobey the Beth Din, and his acquiescence to the instructions of the Court reflect his true moral self.26 Moreover, the rabbis over the ages have struggled to find various ways of freeing agunot, or women refused a get, from recalcitrant husbands.27 The need to examine sensitive, indirect solutions is even more pressing in Israel, where one state law, such as tort or contract law, may circumvent another state law, such as family-religious-personal law, in matters of marriage and divorce.28 This article proposes the use of a private law solution to a problem in the family arena caused by the use of religious non-liberal practices which harm individuals in the family. This solution may provide more successful alternatives to classic solutions offered by family, criminal, or constitutional law. It is preferable to non-intervention by state. Indeed, the state may decide not to intervene, for example, in the name of group or communal cultural rights; however, not intervening means that the state abandons the weak individual for the sake of multiculturalism and perpetuates the power gap, which is an extreme and troublesome stance. The state may intervene by deciding to criminalize religious practices that harm human rights, even though they are sometimes valid under religious-family law, as was done recently in Israel regarding get refusal.29 Alternatively, the state may choose to declare the practice unconstitutional, as was done recently in India regarding talaq (unilateral divorce, that is divorcing a wife against her will).30 The state may also decide to significantly narrow the sovereignty of religious law and courts in family matters, if the courts are state courts (as is the case of Israel).31 If they are private courts (as in most countries), the state may decide not to allow them to act if they condone an abuse of human rights and the oppression of vulnerable individuals. Intervening through the use of criminal or constitutional law or by narrowing the sovereignty of religious law and courts are extremist solutions: the confrontation is too direct and not subtle enough, and it may seriously harm multiculturalism and the delicate balance between majority and minority sectors and between laws and courts. Is there a compromise solution that is able to balance liberal individual rights and communal rights? This article argues that there is: to create financial disincentives via private law. In this way the voice of both values is heard. The message is that utilizing private law has many advantages, and one should definitely not confine oneself to the use of family law for handling family affairs, nor wait for the state to intervene via criminal or constitutional law. The existing and the proposed private law solutions from outside the area of Jewish-religious-family law will be examined with a view to determining the best, most effective solution. Some of them are of the stick type, i.e. imposing sanctions on the refuser, and others are in the category of carrots, i.e. rewards and positive incentives for the refuser to give the get. Next, the article examines whether there is room for desirable, hybrid alternatives that would maximize the utility of the steps that the law can offer for combatting get refusal. 3. The stick: Civil actions in order to trade the compensation for divorce According to Jewish law, the husband, almost unilaterally, holds the key to divorce, for he must give the get out of his own free will.32 Accordingly, in many cases, the refuser seeks to extort money or assets from his wife so that she waives her share in the common property or other rights in exchange for the get. With no additional legal intervention, she has two bad options: not to pay and to remain chained to an unwanted marriage, or to give up and pay large sums in order to buy her freedom. The stick, which has been used for years in various states, takes the form of civil actions brought by victims of get refusal against the refusers.33 These actions seek to classify the get refusal as an actionable tort or a breach of contract, which entitles the victim to compensation for her emotional distress.34 Contract and tort suits are an accepted private law solution today to compel the get when the victim of refusal has come to a dead end. This stick is indirect but effective in some cases, and it is aimed at making financial extortion unprofitable. However, the victim must battle on her own in bringing and carrying out the civil action against the refuser. Such a civil action against the refuser has two deterrent goals, one general and one concrete. The general goal is to disincentivize refusal, letting the refuser know that the refusal has a price and it is not worth pursuing. Even a mere awareness of the possibility of bringing the action may act as a deterrent. The concrete goal is to deter refusal in a specific instance and to act against a person who has already actually refused: a trade framework may be established whereby the refuser will agree to give the get while the victim will agree to waive the compensation she has been awarded.35 In order for this solution to work, relatively high compensation would need to be awarded; otherwise, even a risk-averse refuser is liable to take the risk of paying in order to extract a much larger sum in exchange for giving the get. Consequently, the divorce cannot always be achieved by this means. Even though civil actions look like a successful start-up, they often entail many problems. First is the above-mentioned concern about a coerced get as a result of that trade, for financial pressure on the refuser is applied outside of the rabbinical courtroom and not in accordance with the precise Halakhic rules under which in relatively rare cases a get will be regarded as valid in spite of financial pressure. Similarly, whereas in some states this solution strengthens the position of private rabbinical courts, which have no power of enforcement, by enabling a civil court to enforce their decisions, in Israel this solution actually weakens the state rabbinical courts and circumvents their decision not to compel the get in a majority of cases. Consequently, these civil actions for get refusal now stand at the forefront of the jurisdictional battle that has been waged between these state tribunals for some time. The claim is that the civil court is intervening in the exclusive jurisdiction of the rabbinical court in matters of divorce, even if it is doing so indirectly and not without jurisdiction.36 This outcome led the Chief Rabbinical Court in Jerusalem to rule that if a woman has merely filed a tort action, even if the process has not ended and no compensation has yet been awarded, all proceedings to arrange her get in the rabbinical court will be stayed.37 However, in most jurisdictions in which the practice of bringing such actions exists, there is no jurisdictional battle, for there is a separation, even if only partial, between church and state, and rabbinical courts in those jurisdictions are private, rather than governmental, institutions. In the United States, there is even a certain level of cooperation between the rabbinical courts of the Beth Din of America, a private rabbinical court that operates as an arbitration tribunal, and the civil, state courts. But it must be recalled that even if there is no battle for jurisdiction, the concern over a coerced get remains.38 However, where there is a separation between church and state, and the rabbinical courts are private and act as arbitrators, other problems typically arise. For example, the intervention of the civil judiciary in religious matters, which, it is argued, is against the First Amendment to the American Constitution, has been regarded as problematic.39 However, in the United States it has been ruled that this does not constitute a violation of the First Amendment. A prenuptial agreement is a civil contract, for all intents and purposes, even if it was signed in the framework of a religious proceeding. The action in contract is in most cases for breach of a prenuptial agreement, which stipulates maintenance payments upon separation. There are prenuptial agreements that require the husband to pay increased maintenance payments in the event of separation (for any reason whatsoever).40 A husband who signs such an agreement knows that if he refuses to give a get, he has undertaken in advance to pay considerable sums which accumulate over time, and if he does not pay, he will be sued for breach of that provision. This contractual suit is not dependent upon proof of fault and is based on prior agreement. For example, in the community of the Rabbinical Council of America (RCA), which has adopted the agreement of the Beth Din of America, as is accepted in many parts of the world, such agreements are very common. This practice is so common that no rabbi in this community will agree to conduct a wedding if the couple does not sign a prenuptial agreement containing a provision granting the wife-to-be the right to relatively high maintenance payments, around USD 100–150 for each day of separation.41 Therefore, a husband who violates a prenuptial agreement clause is subject to the jurisdiction of a civil court, like in any other instance of breach of contract.42 In some European states, such lawsuits are considered to be morally dubious and contrary to public policy.43 Another problem is that a civil action may be very expensive and protracted. The victim must hire a lawyer, submit an action and carry it out, pay the fees, submit to cross-examination, and there is no certainty as to the amount of damages that will be awarded, if any, and whether the award will be large enough to incentivize a trade. Then the parties negotiate in order to sign an exchange agreement. The plaintiff should apply to the court for the civil judgment to be recalled, and then the parties should apply to the rabbinical court for the get. A lengthy period usually elapses before the process is complete. In a tort action, fault must be proven, and in various states it is also necessary to prove the intent to commit a tort (e.g. in the United States, the intentional infliction of emotional distress, IIED). Moreover, the husband might not refuse formally, saying instead that he is ready to give the get, but he has certain conditions before he will do so; he thus makes it difficult to prove his fault and liability, and may even ascribe the liability to the wife who “chains herself.”44 In that respect, a contractual action would appear to be a good solution: it does not require proof of fault and it is based on prior agreement of the husband himself. If the aforementioned provision is present in a prenuptial agreement, proceedings can be shorter and litigation less complicated, and difficult questions of fault and breach of duty of care can be avoided. Similarly, calculation of the damage is simple in a contractual action—one only need to multiply the number of days of refusal by the amount that appears in the agreement. However, the contractual course of action still raises some problems.45 First, it is usually relevant only when a prenuptial agreement was signed; if such an agreement was not signed, other paths must be sought, contractual or tortious. Thus, for example, ultra-Orthodox Jews tend not to sign prenuptial agreements, for various reasons, whereas in secular and conservative communities, too, such agreements are not very widespread.46 Second, as in tort actions, here too there is ultimately a concern about a coerced get, for beneath the innocent exterior, as it were, of these maintenance provisions lies exactly the same purpose, of hitting the husband in his pocket in order to equalize the parties’ bargaining power. Third, and beyond all this, in certain states in which there is separation between church and state, it has been argued that the civil court cannot entertain such actions since they are actions in a religious context and they affect status, whereas civil courts are competent to deal only with purely financial aspects, for example those entailed by civil marriage.47 The counterargument has been that even if the source of the obligation lies in religious law, in practice this is a financial obligation that is backed by an agreement that is civil for all intents and purposes.48 Thus, for example, in most US jurisdictions these counterarguments were accepted and such actions were in fact approved,49 whereas in certain European states these arguments were rejected.50 Above all, even if a civil suit constitutes a successful course of action, it leaves the victim of refusal after the trade with the get and usually without compensation for her emotional distress, whereas in an ideal world she should have both rights. If so, the stick, or the civil action, which is still one of the central civil weapons for combatting get refusal, has its own problems. New ways of thinking are required, along different channels, in order to devise more effective, comprehensive, and faster-acting solutions. 4. The carrot: A fee-fund for positive payment to the refuser Carrot solutions reward the refuser by wiping out existing debts or granting money from communitarian or state funds to compel the get. These methods are likely to be effective, for their purpose is to reach a similar outcome with fewer steps and at a lower cost; they do, however, involve moral and other problems. Two carrot solutions exist already, but they are only local and very limited in scope. These solutions do not exist explicitly in the Israeli law but rather by virtue of the law.51 The first local, limited solution is activated by the National Insurance (NII). The rabbinical court can ask the NII to wipe out the maintenance debt of a get refuser, in order that he agree to give the get. In this case the NII still pays the maintenance, but wipes out the husband’s debt only after the husband gives the get. There are several cases annually, usually involving people who would apparently not pay anyway (bankrupts, etc.). The solution operates in a limited sphere, and it does not apply to the contrary case, i.e. of husbands whose wives refuse to accept the get, for in those cases maintenance debts are not relevant. Debt forgiveness does not apply in states that have no national insurance mechanism, or, possibly, in countries in which there is a separation between church and state. The second local, limited solution is a positive payment made to the refuser from the budget of the Rabbinical Courts Administration in order that he desist from his refusal and give the get. A budgetary regulation provides for a fund, called the “Agunot Fund,” that is applied to the release of the victims of get refusal. In hard cases of refusal only, rabbinical court judges can submit a request to a committee, which may approve awards to the refusers of amounts of up to approximately USD 2500. Here too, the awards are made only after the get has been given.52 Therefore the focus will be on one global carrot solution which has been proposed recently by Guido Calabresi53 but has not yet been adequately analyzed. According to this proposal, the payment would be made from a special fee-fund to be established and administered by the state (by a new body to be set up by the rabbinical courts) or, in countries which separate religion and state, by the community to which the couple belong. According to Calabresi, the fund would be made up from a special, moderate marriage fee—ranging between USD 50 and USD 100—levied on couples who marry according to Jewish law. The purpose of the fund would be to counteract get refusal. Calabresi explains that in fact the husband would not be forced to give the get, but he would certainly be vigorously incentivized to do so. In Calabresi’s opinion, even though we do not usually pay someone to desist from his wrongful behavior, if the situation is such that there will be expenses if we do not pay, and significant benefits if we do, this is an efficient line to take. The concerns about the immorality of rewarding refusal in the form of a positive payment to the refuser, about incentivizing refusal and about fraud notwithstanding, Calabresi believes that it will be more efficient to pay the refuser directly than to award the victim compensation and wait for it to be traded for a get. According to him, the system can tolerate a certain amount of fraud, and at most this will be factored into the amount of the fee, raising it a few dollars, thus distributing the loss. The insurance system, too, deals with such concerns, usually successfully: it is set up to investigate fraud, and the loss is distributed to those insured, with part of the policy payments being used for tracking by investigators; alternatively, the system—as Calabresi explains—simply internalizes, absorbs, and tolerates a certain reasonable amount of fraud. It seems that the carrot may achieve the get more easily than the stick. Nevertheless, only a relatively large payment will incentivize desisting from the refusal, for otherwise the refuser may believe that in the rabbinical court he can extract higher amounts. If the balance in the fund is insufficient, it will not be possible to make large payments. The more couples who marry Jewishly, the more money there will be in the fund. However, the more that payments are made to refusers, the less there will be for each refuser, unless the fund is subsidized. A ceiling should possibly be set in order to guarantee payment in every suitable case, but a ceiling will not always help in creating an incentive to trade, if the refuser believes that he will extract much more in the rabbinical court. The carrot seems to be efficient. Not many factors or processes are involved, the costs are relatively low, the loss is well distributed over all the couples who undergo a religious marriage, there is no need to prove fault, and the payment is made quickly when the refusal stops. True, the victim does not receive compensation for her damages, but neither does she need to bring a civil action and exchange the damages awarded for the get. However, incentive for refusal, as a moral hazard, is a concern in light of the information about the very fact of the existence of the fund, thus increasing the number of recalcitrant husbands. There may be also a crowding out effect: if we use incentives, people may not do the morally or socially right thing, but will act only according to the incentive.54 In our case, the concern is that over time, there will be a demand for ever-greater payments for consent to give the get, as refusers become accustomed to the idea that they deserve to be paid for desisting from their refusal. Following on from the problem of moral hazard, there is a concern about fraud on the part of couples who might really intend to divorce, but will put on a show of refusal in order to receive and divide up payment from the fund. However, as stated, the fee will be raised a little for this reason. According to Calabresi, the administrators of the fund will investigate the case before making the payment and deciding on the amount.55 Other main problems are these: there is no resounding social condemnation here of refusal, and no recognition on the part of society of the suffering of the victim; the power remains in the hands of the refuser; and there is a moral problem since the sinner profits. On the other hand, the refuser himself participates in establishing the fund and in the payments from it (as in the insurance mechanism). Although the sum is fairly symbolic, this might somewhat alleviate the moral problem. Lastly, one should examine whether a carrot solution also raises concern about a coerced get.56 5. A view toward a desirable mechanism: Sticks, carrots, or a hybrid? 5.1. Between the carrot and the stick: Which incentive is preferable in combatting refusal? After presenting stick and carrot solutions, this chapter attempts to examine which of them is preferable not only in prevention but also in putting an end to the negative externality. a. The moral problem A clearly moral problem emerges in offering a carrot with the objective of putting an end to a negative externality: the sinner is rewarded; and he will not be willing to desist unless he is given a carrot. One of the dangers here is that offering an incentive for an act that should be voluntary may reduce the number of people who are willing to act voluntarily.57 If a carrot is being offered in order to stop negative externalities, there will be a crowding-out effect.58 From this point of view, payment for an act such as giving the get, which society understands as something that must be done in order not to imprison the spouse in an unwanted marriage, is liable to be perceived as immoral. However, one may say that actions in tort and contract suffer from the same moral problem as a classic carrot. For in fact, a debt is created by virtue of tort law and contract law, and the victim of refusal waives the collection of the debt in exchange for obtaining the get. In fact, even though these actions are regarded as a stick, since the husband is affected financially, in practice his debt is forgiven in exchange for giving the get, which is something that he ought to have done without debt forgiveness. Thus, this is in fact equivalent to wiping out the debt by the National Insurance, or worse, since the victim must launch a separate suit under private law, and bear the burden both economically (court fees, lawyers’ fees) and substantively (the requirement to prove her case, cross-examination, etc.). Further, a private law suit takes several years on average, and the sums that are awarded are not always sufficiently high in order to incentivize an exchange of the get for the forgiveness of the tortious or contractual debt. Therefore, even if one does not consider the civil actions purely as a carrot but as a stick, it seems that one cannot ignore the fact that they carry a moral problem of their own. b. The burden of executing the solution Civil actions that generate victim compensation awards that can be traded for a get are in fact a private law solution, which definitely can play a role in combination with attempts to bring about change in the public sphere and suitable enforcement on the level of religious-family law. It would appear that this stick is readily available at present, and if victims were to use it frequently it may eventually no longer be necessary due to its adequate deterrent effect. However, as explained above, the fact that the victim must conduct an action in the civil court places a considerable financial and psychological burden on her. Such a stick also requires the victim to execute a post-judgment transaction aimed at obtaining the get. True, the state helps in that it provides a legal platform. Nevertheless, the burden is substantial, and this makes the threat of litigation not fully credible. In addition, some victims may lack resources, making them essentially judgment-proof. The carrot mechanism appears to be cheaper and quicker. c. Efficiency The carrot may serve as an effective incentive aimed at obtaining the get. However, if the aim is also to prevent such cases ex ante, and not only to operate on a case-by-case basis, the carrot—at least on its own—is problematic, because it sends the message to the refuser that he can only gain. As opposed to this, the stick is more effective in that it sometimes succeeds in deterring people in advance from refusing; however, the stick is not always successful in achieving the desired outcome: it requires time (before a ruling can be reached and, in post-judgment bargaining, before a deal can be agreed) and is costly. Nevertheless, the carrot still costs money, since a positive payment is made to the refuser; whereas the stick carries no cost, since no money is actually transferred to the refuser. Instead, the stick involves a kind of waiver in relation to collecting on a financial right,59 and the mechanism is not actually implemented: it remains only a threat.60 On the other hand, the mechanism of enforcing the stick when necessary is expensive, and the costs of litigation and execution are high. In any case, in relation to the test case, things do not seem to be unequivocal: on the one hand, even if civil actions succeed in deterring some potential refusers from actually refusing, a situation of absolute or optimal deterrence that renders recourse to lawsuits unnecessary will still not have been achieved; and on the other hand, the carrot comes with its own specific set of problems, as mentioned above. 5.2. Interim conclusion It cannot be said definitively which incentive is preferable as a civil solution in the battle against get refusal. There are clear advantages and disadvantages to the use of each. For the purpose of presenting as wide and efficient a solution as possible, neither sticks alone nor carrots alone are sufficient. Consequently, the best thing would seem to be to combine the stick with the carrot. It will be necessary to examine how the drawbacks of carrots, including the moral problem, may be neutralized. Also, in our case, the solutions should be not only effective but also as compatible as possible with the religious-Jewish law. 5.3. In praise of a combination of carrots and sticks Although a great number of scholars have analyzed the significance of sticks versus carrots, few have considered or addressed the possibility of combining the two.61 Some have offered various proposals for combining sticks and carrots and arriving at a hybrid system.62 For example, one suggested combination is to distribute carrots to one segment of the population and to use sticks on another, in order to overcome the distributive problem.63 Thus, for example, environmental regulation was proposed in certain cases to extend only to some of the affected lands.64 With respect to health insurance in the United States, too, the law employs carrots and sticks differentially for different parts of the population.65 Proposals have been made to combine carrots and sticks by incorporating a certain insurance mechanism into the existing US healthcare system.66 Regarding the policy of payments and taxes, too, a hybrid path has been proposed in certain cases.67 Another example of selective application involves sanctions in the form of fines and punitive damages for the purpose of deterring bribes aimed at defrauding the authorities or willfully harming citizens; however, there have been somewhat provocative proposals of enactment of statutory carrots that would remove or reduce these sanctions under certain conditions, with the aim of reducing corruption and fraud and eliciting cooperation.68 According to the proposal, unless the sticks are combined with carrots, we are left with cases in which the sticks by themselves are not always effective.69 Galle warns against combining sticks and carrots carelessly.70 Indeed, it is not always possible to present a stable combination that optimizes the benefits and prevents the drawbacks of each of its components. But, in our context, there are combinations that might be viable. 6. Combining carrots with sticks in practice: A proposal for a vertical model This section presents a solution which links the stick and the carrot in a multi-part incentives structure that enables rewarding the refuser in ways more effective than the stick alone. The combinations that were presented in the previous section were for the most part horizontal or simultaneous, i.e. a policy whereby a carrot is offered to one part of the population at the same time as another part is threatened with a stick, or the two mechanisms are used simultaneously on the entire relevant population with the aim of achieving the best overall results. The combinations that will be presented are vertical in nature, and they will serve as a basis for a viable model. 6.1. The proposed model: The carrot becomes a stick, combined with a social sanction a. The carrot becomes a stick We seek a sequential, vertical, two-stage combination of carrots and sticks, in which the second stage will be activated only if the first stage is unsuccessful. A carrot will occupy the center of the first stage, to be followed by a threat, that is, a stick if the carrot does not succeed due to obstacles placed by the refuser. There will be an incentive to try to comply with the conditions for the application of the first stage, in order not to reach the second, stick stage. There are law and economics approaches which make this basically desirable connection between two stages in some conditional way. However, it must be stressed that the purpose of invoking theories of law and economics in this section is only to extract basic ideas for building a skeleton model suited to our purposes; the intention is not to copy real economic models, which include a set of basic assumptions that are not always suited to the cases of get refusal. Therefore, these economic models will be adopted, but the details will be adapted to the test case. In their famous 1972 article on the four rules or “the Cathedral,” Calabresi and Melamed discussed several ways whereby the law protects the parties’ entitlements, enabling their realization and enforcement.71 They formulated four property and liability rules favoring either the injured or the injuring party.72 Over time, other rules were added, such as rules 5 and 6.73 Ronen Avraham presents the “modular liability rules” which, when combined, open a set of possibilities rather than only one.74 Rules 2 and 4 have been interpreted as a “call option,” i.e. an option for a compulsory acquisition of the right from its owner in exchange for a predetermined sum.75 Consider a case of a nuisance, in which a plant pollutes and the resident-victim suffers from lack of clean air. In rule 2, the call option in the case of a nuisance is that of the polluter to purchase the resident’s right to clean air (it means that he can keep on polluting, as long as he pays the resident damages), whereas in rule 4, the call option is that of the resident, and if he pays the polluter, the polluter must stop its emissions.76 Rules 5 and 6 grant a “put option,” which is the choice of whether to leave the entitlement or to force the person who is not the holder of the right to purchase it from him.77 Avraham presents a new modular rule—combining rules 6 and 5. Under rule 6 + 5, the resident-victim has the put option to compel the transfer of the right, i.e. he is the one to decide whether to force the purchase, that is, to be paid by the plant a non-negotiable amount and suffer from the pollution or not, in which case the polluting plant must stop its emissions; the polluter has a subsequent call option to sell the right back to the resident, at his discretion, i.e. to compel the purchase of the right and to receive compensation from the victim in exchange for ceasing the damaging activity or to retain the right and continue to pollute.78 The process begins, therefore, with the victim’s option to realize the right vis-à-vis the polluter, and moves over to the opposite option. Ian Ayres and Paul Goldbart present a similar path regarding the “dual-chooser rules,” stressing that “a common law put rule can be seen as a two-stage process: in the first stage, the defendant intentionally takes, thereby signaling a willingness to face the plaintiff’s put option in the second stage.”79 For our purposes, the combination will be implemented slightly differently. The opening position in our case is that the victim is interested in a deal to obtain her get, and in most cases that is the only reason for her embarking on this course rather than any desire to receive compensation from the refuser; moreover, there does not seem to be any way to actually compel her to make such an agreement. However, the modular or the dual-chooser rules may create an opening for devising a different rule that combines the two different models presented above—the carrot (the fee-fund) and the stick (civil action)—whereby both parties participate in a vertical, two-round “game,” and bargaining in order to trade the entitlement for a price determined by the authorities becomes possible. It is possible to resort to a civil suit only as a residual process, i.e. to be invoked only if the refuser does not decide to accept money from the fund within a set time, and at that preliminary stage the victim must agree not to bring a civil suit against him in the meantime. In such a situation, the refuser has a preliminary option—a choice which is his alone—of taking the money from the fee-fund and granting the get, in fact a put option of the right. If he refuses to accept the money within the set time, this means that he has waived that option. Now the victim will have the option of suing the refuser and using the compensation award to purchase the get. A vertical two-stage construction such as this will incentivize the refuser to accept the payment from the fund at the first stage, for he knows that his situation will worsen at the second stage, at which point he might be ultimately compelled to give the get without having received any payment at all. A combination rule such as this provides the refuser with two options for selling the get, both of them within his discretion. At the first stage, an offer is made to the refuser to accept payment from the fund in exchange for giving the get. The victim, apparently, has no deciding voice at this stage; only the refuser decides whether or not to accept the offer and sell the get in exchange for the payment from the fund (and this may attest to the fact that the get should not be considered as coerced, for the refuser has a choice, albeit relatively limited). The process begins, therefore, with the refuser’s own decision as to the course of action, even though he is well aware of the threat of the stick. That information as to what can be expected in the future is a key point here. If the refuser decides not to respond to the offer, the process moves on to the second stage, in which the victim has an active role; however, the refuser still cannot be forced to agree to the sale of the get. Nor will the victim be forced to purchase the get with the compensation that she is awarded in the civil suit (for she can decide to hold on to the awarded sum). In that case, there is no “roll over” of the decision from one party to the other, for the refuser has the right to decide at both stages; however, the victim has the right to decide at the second stage (of course her consent to the whole process, including her agreement not to sue in torts or contracts at the first stage, is needed). The threat of the second stage can cause the refuser to agree to accept the payment from the fund at the first stage. A two-stages vertical proposal such as this may be effective, certainly more than recourse to the stick alone or to the carrot alone. When willingness to pay (WTP) is lesser than willingness to accept (WTA),80 that is, when the refuser will not accept a sum lesser than X, and the fund cannot give him X or more, the refuser may not accept the carrot. We look for a way in which it will be possible, on the one hand, to incentivize the refuser to accept the carrot and stop refusing, but at the same time to threaten him even more strongly with sanctions, beyond the threat of suing him in torts/contracts, if he does not accept the carrot. Moreover, there are still problems with the modular solution. Too much power remains in the hands of the refuser. Furthermore, this solution does not advance the possibility of conducting serious negotiations before the external incentives (the carrot or the stick) enter the picture, for the refuser has nothing to lose if he becomes subject to the model and takes the carrot (at most, he will gain less than he would have if he had extracted the victim in the rabbinical court). Therefore, there is room to improve this modular proposal further by invoking an additional approach of law and economics that will create a better link between the carrot and the stick. This approach will try to provide an incentive for the refuser to accept the carrot and desist from refusal, but there will also be something to deter him from doing so and convince him to give the get without embarking on that vertical path. The vertical path must therefore be both rewarding but also deterring at the same time: at the first stage the carrot must not be rewarding only. We can take this one step further along the lines of the reversible rewards theory.81 Omri Ben-Shahar and Anu Bradford propose that one party, the enforcer, who is interested in directing the conduct of the other party, the potential violator, establish a fund, and to the extent that the other party fulfills its requirements, monies from that fund will be transferred to them as a carrot. If he does not fulfill the demands, the fund will be transformed into a stick, i.e. the money in the fund will be directed toward the application of sanctions against the violator, and to that purpose only. The fund is one-sided, and cannot be directed to the enforcer. Ben-Shahar and Bradford explain that this proposal has a double effect from the point of view of incentives for the potential violator, and it is relevant, and even critical, in cases in which sticks alone are not effective, because their costs (litigation costs, costs of enforcement etc.) are higher than the harm that they prevent, and carrots alone are also ineffective, for their cost, too, is higher than the harm that they are designed to prevent.82 In that case, reversible rewards can achieve deterrence at approximately half the cost.83 This proposal rests on two bases. The first is that of the double effect, by virtue of which the same resources can be used to fund both the carrot and the stick.84 The second basis is the use of a pre-commitment device, which solves the problem of the credibility of the threat, without any additional cost, by strengthening the mechanism of transforming the carrot into a stick. This cannot be said of cases in which the same funds can be used for other purposes or retained by the enforcer, since then there is no certainty that they will be used for stick purposes, i.e. to carry out the threat in case of a failure of the carrot. The authors warn of a possible problem of moral hazard if there are a great number of repeat violations.85 They illustrate the possibility of implementing their proposal at different levels, which include public and private law,86 but family law is not among them. The kernel of the idea can be implemented in our context in two ways. Let us begin with the first mechanism—a private account. A joint private account could be opened by the spouses, as a type of mutual pre-commitment. To do so, however, the limitation of a unilateral account must be removed. In our case, the account could be bilateral: each spouse could fulfill the rule of enforcer or violator, and the money, which will be provided by the joint contributions of the couple, will be held in trust, and not by one of the parties. If one spouse becomes a violator, he or she will receive the whole amount of their own deposit (or half the amount in the fund, if the monies were deposited by both spouses) from the trustee of the fund if he stops the refusal;87 if the recalcitrant spouse persists in the refusal, the whole sum—comprising the contributions of both spouses—will be used against him or her. If neither spouse is a violator, the monies will be divided between them at the end of the relevant period (in our case, upon divorce). It will also be noted that if the refuser is not offered, from the outset, the cumulative sum, but only the portion that he deposited in the fund, there is no difference here between a person who divorced without refusal and one who began as a refuser and his share was offered to him. But this is precisely the ideal outcome—a person who divorces without refusal receives his share; if a person refuses, he is offered the opportunity of giving the get and being in the same position as a person who did not refuse, but only for a limited time. If he does not give the get within that period, his share will be transferred to the victim at the second stage. In order for the threat to be credible, the victim must use the money only for legal proceedings and only against the refuser. Thus the refuser is incentivized to accept the offer of payment even more than in the modular solution. Nevertheless, sometimes the balance in the account will be insufficient to incentivize the giving of the get. Sometimes the refuser may hope to extract a larger sum. Why? The payment from the account depends on the economic situation of the couple prior to setting up that account, and on the amount that was invested initially. It is possible, based on legislation or the text of a prenuptial agreement, to fix relatively high sums to be deposited. However, unlike liquidated damages or increased maintenance in prenuptial agreements, the aim of which is to combat refusal, and which are all enforced by bringing an action ex post, here the sum must actually be deposited ex ante. Not every couple is able to deposit large sums in this account. However, the mechanism could be linked to the couple’s wages, and a certain percentage could be deducted, similar to a pension system. If no refusal is involved in the couple’s divorce, they will benefit from the fund and receive whatever sum has accumulated in it in addition to the interest, and thus it will be possible to achieve a higher amount. The second mechanism that could be created is an improved mass fee-fund (IMFF). It is possible to improve the mass fee-fund, making it into a type of reversible reward.88 The monies that are designated for payment to the refuser will be handed over in their entirety to the victim if the refuser refuses to accept them and give the get. Hence, at the second stage, the mechanism continues to operate in a similar fashion to the above mechanism of a private account established by the couple: if the violator does not accept the money from the fund, the money will be used to take legal action against him. Here, because the fee-fund is made up of small payments from many couples, it is possible to accumulate large sums of money for use as carrots and as sticks, and the fund will not be limited to the amounts that the couple themselves deposited. It will be necessary to set criteria for deciding how much to pay and in which cases, and to ensure that the fund is not depleted. If so, an activation of the modular or dual-chooser rule along the lines of a reversible reward will create an IMFF—a fund consisting of fees levied on all those who marry in accordance with Jewish law, which offers a carrot that will eventually become a stick. This will occur after new legislation on the subject, if the state administers the IMFF. If the state does not administer it, for example due to the separation of church and state, communities or private rabbinical courts in these jurisdictions should be permitted to administer it. If these proposals—IMFF and the private account—are also contractual by nature, it may be assumed that there will be no problem of a coerced get, since the parties themselves agreed in advance to set up this fund and they took into account that if they are in breach they will in fact be penalized.89 The following sections of this article are aimed at explaining and improving only the second proposed mechanism, that is, the IMFF. b. Vagueness of the criteria for receiving a carrot from the mass fee-fund If the parties do not reach an agreement at the pre-mechanism stage, the refuser will become subject to the proposed mechanism. Carrots will be distributed from the IMFF to refusers according to vague criteria. It will not be clear to the refuser whether he will receive a carrot, when he will receive it, or what the amount will be. Vagueness of the criteria combined with an individually tailored carrot, rather than a general, fixed carrot that is offered to all refusers, may be the secret to the success of this course. If the criteria were clear, every potential refuser would ensure that s/he comes within the bounds of these criteria in order to receive payment, possibly incentivizing many people to become refusers. Vagueness can help in achieving efficiency, despite problems of transparency: there are cases in which the absence of clear criteria, as a deliberate course of action, is inevitable.90 c. Shaming as a social sanction: A type of stick within the carrot stage of the mass fee-fund The IMFF is not yet complete. Another component of sanction is required. Without such a component, a large proportion of refusers will accept the carrot at the first stage, and it will be an incentive to refuse. The moral problem of giving sinners a carrot remains, even if some of the refusals will end relatively quickly through use of this vertical mechanism. A proposal for a social sanction at the carrot stage fulfills this function. Continuing on from social sanctions, such as banning or excommunication, available to the rabbinical courts worldwide and invoked to these sanctions, a list of refusers can be compiled and published on official websites that are accessible by the public upon activation of the IMFF mechanism, and this will constitute shaming under the auspices of the law, i.e. a type of sociolegal stick.91 Even if the recalcitrant husband subsequently gives the get, his name will not be removed from the list. The refuser will receive proper advance warning in writing to enable him to give the get before the mechanism is activated. Because such mechanisms do exist in Jewish law and even in Israeli non-religious law in the form of concrete court rulings,92 it may not be so revolutionary if such a law enabling a permanent list of refusers were to be enacted, even if only in states in which there is no separation between religion and state. Of course, the idea must be examined in light of the principles of violation of privacy etc., particularly in family matters, in which the names of parties are usually confidential, but it must be recalled that at stake are two no less important values—the liberty of the victim and her autonomy. In any case, rather than contending with problematic constitutional balances, if the IMFF is administered by the rabbinical court, it will in fact not be necessary to enact a special law, even in states in which there is a separation between church and state, for turning to arbitrate in the rabbinical court constitutes consent to all the remedies that are awarded by the court, including such shaming.93 Institutionalized-regulatory shaming is more suitable in cases of get refusal than private, “partisan” shaming, done by the victim.94 d. The importance of the preliminary, pre-activation stage The mechanism should encourage many refusers to give the get before it is actually activated. Indeed, if the mechanism conveys the correct message, calculating-rational refusers will desist already at preliminary, pre-activation stage and will give the get because they do not want to be subject to a mechanism whereby they can only lose, since it involves sticks such as shaming as well as the carrot payments becoming a stick and being transferred to the victim. Only the less rational refusers who are only able to see the payment that awaits and who would not be deterred by shaming will become subject to the mechanism, and it is for them that it exists. In this situation, the money in the fund will be sufficient to pay the refusers, for only a portion—hopefully a small portion—of refusers will fall within the sphere of operation of the mechanism. What is this pre-mechanism stage? The refuser will receive advance warning of some two months before he is subjected to the mechanism. During this time, he can conduct negotiations with the victim. The refuser knows that if the negotiations do not succeed within those two months, the mechanism will be irreversibly set in motion. The victim, on her part, can agree to the transaction at this stage, and pay a smaller sum than initially agreed in exchange for the get, or she may prefer to wait for the carrot stage, at which point she is required to pay nothing since the money comes from the IMFF (but she loses time). e. An option of activation of the carrot by stages IMFF could provide an option of activation of the carrot by stages, its value decreasing over time. Thus, for example, it could provide that the refuser will receive USD 25,000 from the fund if he gives the get within two months. If he gives the get in the third or fourth months, he will receive USD 15,000. If the refuser gives the get in the fifth or sixth month after the mechanism has been set in motion, he will receive only USD 5000. After six months the carrot is valued at zero, and it becomes a stick for the purposes of legal proceedings against the refuser. It is possible to fix an interim period, say another two months, during which the refuser can still come to an arrangement with the victim and give her a get in exchange for USD 0. After those two months, and when eight months have elapsed from the beginning of the process, the entire sum—USD 25,000 in the present example—will go to the victim. In any event, after this period of eight months, the carrot will turn into a stick, i.e. the money that was designated for use as a carrot will become a stick that is used in legal proceedings against the refuser to obtain the get.95 6.2. Economic model for family affairs? One may argue that the type of scheme that combines carrots and sticks in addition to the threat of bad press, suggested in this article, may well deter potential polluters or tax evaders who are thinking in terms of purely economic models, whereas the human element in marriage and its dissolution is, however, so compelling and emotionally charged that seeking a resolution in economic terms seems less practical. However, in many instances, get refusal is refusal for the purpose of economic extortion and exploitation of a position of superior bargaining power under Jewish law. This involves a great deal of rationalizing, not just emotion. The point of departure of the article is that there is less to be done with ideological refusers from the perspective of incentives, certainly as far as private law is concerned. The aim was to add another, strong tool into the toolbox designed to combat refusers on economic grounds. There is a division here between those who are scared of shaming and those who are not. The former will make an attempt at extortion, and if it is successful—great, but if they are threatened one way or another, economically or by shaming, they will withdraw their own threat and give the get, possibly even at the pre-mechanism stage. On the other hand, those who fear nothing and only want money, even at the cost of shaming, it is for them that the whole mechanism exists, beginning with the carrot stage, which includes shaming. If the refusers choose not to take the carrot in the first stage and wish to extort further, they will be “hit” in the second stage with this money that is given to the victim of refusal to allow her to bring a civil action against them. It means that the refuser’s situation will be worse compared to their present situation in which a tortious action is possible but the wife has no funds to proceed. 7. Conclusion What is the best means of stopping one person from harming another, from the perspective of negative externality: is it the stick, the carrot, or a combined multi-stage mechanism? The test case was the search for efficient solutions to the problem of extracting money from a spouse in exchange for divorce and through abuse of the power held by the refuser. The intermediate conclusion was that the best solution is to expand the toolbox, and not to choose one solution alone. An attempt has been made to design creative viable legal solutions in order to ameliorate the pressing problem of women refused a get—the agunah, which is a universal problem, relevant anywhere in the world where Jews are to be found. A combined solution has been presented in the spirit of the theories of law and economics, namely a combination of carrot and stick with an element of shaming in a manner that is intended to eliminate as many of the existing drawbacks of the two means as possible and to fully exploit the advantages. For all rational potential refusers, the mechanism of carrot-becoming-a-stick would serve merely as a deterrent, and would induce them to negotiate, before the activation of that mechanism, from a more equal standpoint. The combination of carrot, shaming under the auspices of the law, and stick would seem capable of contributing to a satisfactory response to the problem of refusal to divorce. Balanced structuring of this unique multi-stage model, even if it cannot in itself resolve the problem, could dramatically enrich the available toolbox and help to face the difficulties involved in the use of carrots alone, and primarily the moral problem of rewarding the sinner. It would also help with various problems of efficiency and costs engendered by the use of sticks alone. Shaming is an important part of the proposal, providing it with balance, for without it there is indeed room for concern about incentivizing mass refusal. Presumably, however, most normative-rational people, if not all, will not want to find themselves on the blacklist, and this will incentivize them to give the get before they appear there, and they can be expected to reach a settlement during the pre-activation stage. It is for refusers who are presumably neither rational nor calculating, and therefore not too numerous, that the mechanism is designed. In relation to rational potential refusers the mechanism will exist for the purpose of deterrence only. The stick alone cannot solve the problem. Moreover, even though this course of action should be supported, the civil action is actually not much different from a situation in which the victim succumbs to extraction and brings her own money to purchase her get at an earlier stage, as many women in fact do. True, one may say that the victim who waives the compensation awarded to her in the civil action does not actually put out money (except for her legal expenses). But in fact she does lose money that she is entitled to receive—such a victim ought rightly to both receive her get and retain the compensation at the end of the day. The article has a global contribution to make from several aspects, and it is possible to extrapolate from the particular, specific test case it discusses to the general. The article contributes to the legal and social sciences literature on incentives in general, and carrots and sticks in particular. It also presents a unique combination of a social sanction in the form of shaming under the aegis of the law within a legal system. The idea presented in this article of a “vertical game” of different external incentives in a few rounds may also have a practical impact beyond the case of refusal to divorce and family law, specifically where it is suggested in a practice in which most of the hybrid combinations are simultaneous, horizontal. In addition, a wide array of hard problems could benefit from the kinds of sequential incentive models offered in this article. Indeed, the methodology and the analysis offered may constitute a model and make their contribution to issues that arise not only for other cases of sensitive relationships and the appropriate use of financial as opposed to emotional elements, but also in other branches of law, including possible dissolution of business partnerships, when it must be decided what to do with assets that cannot be divided. In addition, the mechanism of the private account can be incorporated into the literature dealing with bilateral rather than unilateral guarantees, which are typical of certain transactions. Finally, the article also strengthens the connection between law and economics, on the one hand, and family matters, on the other—a connection that is considered to be less common. There is an advantage in bringing together these two fields, not only in a theoretical but also in a practical fashion. Doing so contributes not only to the literature on family law and on law and economics, but also to the social sciences and legal literature on incentives. I thank colleagues and friends for their helpful comments and advice and Yakir Ben-Harush, Michael Goral, Alex Greenberg, Yali Guttman, Yonatan Harel, Yehonatan Leibovitz, Liat Meizlish, Rotem Newfield, Moshe Phux, and Yair Shmueli for excellent research assistance. This article won the support of Israel Institute Research Grant 2015, a grant from the Memorial Foundation for Jewish Culture 2017, and a grant from Ihel Foundation, Bar-Ilan University 2018. Footnotes 1 Gerrit De Geest & Giuseppe Dari-Mattiacci, The Rise of Carrots and the Decline of Sticks, 80 U. Chi. L. Rev. 341, 353–4 (2013). 2 Id. at 393. 3 Id. at 354–5 (references omitted). See also Donald A. Wittman, Liability for Harm or Restitution of Benefit?, 13 J. Leg. Stud. 57, 61–2 (1984) (drawing a clear division between use of sticks for the purpose of prevention of negative externalities and sticks in order to motivate positive externalities). 4 Brian Galle, The Tragedy of the Carrots: Economics and Politics in the Choice of Price Instruments, 64 Stan. L. Rev. 797, 800–1 (2012). 5 Id. at 803–5 (“I define a carrot here as a welcome change against a given, usually pre-existing, policy baseline; a stick is simply an unwelcome change in the opposite direction. . . . [T]he phrase ‘against a given policy baseline’ . . . is all that separates the two. . . . [G]ranting carrots enriches recipients at the cost of the general public, and that has implications for the strategic behavior of parties who might be awarded carrots. Using sticks enriches the public at the cost of those menaced with the stick, and has the opposite strategic incentives. My framework can therefore be used to compare any two levels (including zero) of price instruments to each other, since the relative effect of moving from one to the other is the same regardless of direction”). 6 See, e.g., Uri Gneezy, Stephan Meier, & Pedro Rey-Biel, When and Why Incentives (Don’t) Work to Modify Behavior, 25 J. Econ. Perspectives 191, 199 (2011); De Geest & Dari-Mattiacci, supra note 1. See also Galle, supra note 4, at 797 (arguing that the basic literature on sticks and carrots focused on a relatively limited context, namely nuisance, and there too the discussion in not settled). 7 Gneezy et al., supra note 6, at 193–4. 8 Id. at 801–2, 806, 817. 9 De Geest & Dari-Mattiacci, supra note 1, at 343; Galle, supra note 4, at 797, 849; Giuseppe Dari-Mattiacci & Gerrit De Geest, Carrots, Sticks, and the Multiplication Effect, 26 J. L. Econ. & Org. 365, 367–8 (2010) (arguing that the relative cost-effectiveness of sticks is a reason to prefer them. But according to Galle, supra note 4, at 799 n.7, there are additional factors in examining preferences). For a general discussion of the efficiency of incentives, see Ian Ayres, Carrots and Sticks: Unlocking the Power of Incentives to get Things Done (2010); Howard F. Chang, An Economic Analysis of Trade Measures to Protect the Global Environment, 83 Geo. L.J. 2131 (1995); Wittman, supra note 3; Saul Levmore, Waiting for Rescue: An Essay on the Evolution and Incentive Structure of the Law of Affirmative Obligations, 72 Va. L. Rev. 879 (1986); Giuseppe Dari-Mattiacci, Negative Liability, 38 J. Leg Stud. 21 (2009). 10 Galle, supra note 4. 11 See Chang, supra note 9, at 2150–64; Jonathan Baert Wiener, Global Environmental Regulation: Instrument Choice in Legal Context, 108 Yale L.J. 677, 726–7, 755–6 (1999); Galle, supra note 4, at 802–3, 812; David A. Koplow & Philip G. Schrag, Carrying a Big Carrot: Linking Multilateral Disarmament and Development Assistance, 91 Colum. L. Rev. 993, 1026–42 (1991); Henry E. Smith, Ambiguous Quality Changes from Taxes and Legal Rules, 67 U. Chi. L. Rev. 647, 698 (2000). 12 Galle, supra note 4, at 802. 13 This is due to lower transaction costs and a lower risk in the event that the stick is successful and therefore not actualized. See De Geest & Dari-Mattiacci, supra note 1, at 372. 14 Id. at 343–4. 15 For a recent survey, see, e.g., De Geest & Dari-Mattiacci, supra note 1; Galle, supra note 4; De Geest & Dari-Mattiacci, supra note 9; Dari-Mattiacci, supra note 9; Ayres, supra note 9; Chang, supra note 9; Wittman, supra note 3; Levmore, supra note 9. See also Gerrit De Geest, Giuseppe Dari-Mattiacci, & Jacques J. Siegers, Annullable Bonuses and Penalties, 29 Int’l Rev. L. & Econ. 349 (2009). 16 See Benjamin Shmueli, Civil Actions for Acts that are Valid According to Religious Family Law but Harm Women’s Rights: Legal Pluralism in Cases of Collision Between Two Sets of Laws, 46 Vand. J. Transnat’l L. 823, 825, 833, 864–5 (2013) [hereinafter Shmueli, Civil Actions]; Michael A. Helfand, The Future of Religious Arbitration in the United States: Looking Through a Pluralist Lens, Oxford Legal Handbook on Global Legal Pluralism (Paul Schiff Berman ed., forthcoming 2020). 17 Moshe Silberg, Personal Status in Israel 102–3 (1961) (in Hebrew); Pinhas Shifman, Family Law in Israel 164 (1988) (in Hebrew). 18 Code of Maimonides, Laws of Divorce 1:1. 19 Avraham Be’eri, Rabbenu Tam’s Shunning Measures: Novel Approaches to Ways to Force a Husband to Divorce his Wife, 18–19 Jewish L. Y. B. 65 (1992–4) (in Hebrew). 20 For proposals of Halakhic solutions, see, e.g., Irving A. Breitowitz, Between Civil and Religious Law: The Plight of the Agunah in American Society (1993); Michael J. Broyde, Marriage, Divorce, and the Abandoned Wife in Jewish Law: A Conceptual Understanding of the Agunah Problems in America (2001); Aviad Hacohen, The Tears of the Oppressed: An Examination of the Aguna Problem (Blu Greenberg ed., 2004); Monique Susskind-Goldberg & Diana Villa, Za’akot Dalot: Halakhic Solutions for the Agunut of Our Time (David Golinkin, Moshe Benovitz, & Richard Lewis eds., 2006) (in Hebrew); Judah David Bleich, A Proposal to Solve the Problem of a Recalcitrant Husband, 31 Torah SheBa’al Peh 124 (1990) (in Hebrew); Shlomo Dichovsky, Monetary Enforcement Measures Against Recalcitrant Husbands, 26 Tehumin 173 (2006) (in Hebrew); Uriel Lavi, Arranging a Get After Holding the Husband Liable to Pay Compensation to His Wife, 26 Tehumin 173 (2006) (in Hebrew); Ezra Bazri, Get Me’euse (Coerced Get), 16–17 Shenaton HaMishpat HaIvri 535 (1990–1) (in Hebrew); Yehiel S. Kaplan, Enforcement of Divorce Judgments by Imprisonment: Principles of Jewish Law, in 15 The Jewish L. Ann 57 (Berachyahu Lifshitz ed., 2004); Dov I. Frimer,Refusal to Give a Get: Tort Damages and the Recalcitrant Spouse in Contemporary Jewish Law, 19 Jewish L. Ann. 39 (2013); Agunah: Iyyun Manchester (Sikum Hamehqar) (Avishalom Westreich ed., 2012); Avishalom Westreich, Talmud-Based Solutions to the Problem of the Agunah (2012). 21 See Benjamin Shmueli, Refusal to Divorce: Is it a Feminine, Masculinity, or Independent Cause of Action? Between Distributive Justice, Corrective Justice, and Empowering the Spouse Refused a Divorce, 39 Tel-Aviv U. L. Rev. 545 (2016) (in Hebrew). 22 Broyde, supra note 20; Shmueli, Civil Actions, supra note 16, at 873–83 with references. On English law, see Divorce (Religious Marriages) Act, c. 27, 2002. 23 See supra note 20. 24 See, e.g., Ayelet Shachar, Multicultural Jurisdictions: Cultural Differences and Women’s Rights (2001); Pascale Fournier, Pascal McDougall, & Merissa Lichtsztral, Secular Rights and Religious Wrongs? Family Law, Religion and Women in Israel, 18 Wm. & Mary J. Women & L. 333 (2012); Alan C. Lazerow, Give and “Get”? Applying the Restatement of Contracts to Determine the Enforceability of “Get Settlement” Contracts, 39 U. Balt. L. Rev. 105 (2009); A. Yehuda Warburg, The Propriety of Awarding a Nezikin Claim by Beit Din on Behalf of an Agunah, 45(3) Tradition 55 (2012); Ayelet Blecher-Prigat & Benjamin Shmueli, The Interplay Between Tort Law and Religious Family Law: The Israeli Case, 26 Ariz. J. Int’l & Comp. L. 279 (2009); Jean-Claude Nidam, The Stance of French Civil Courts towards Actions against Jewish Husbands Demanding a Get, 10–11 Dinei Yisrael 385 (1981–3) (Heb.); Barbara J. Redman, Jewish Divorce: What Can Be Done in Secular Courts To Aid the Jewish Woman?, 19 Ga. L. Rev. 389 (1985); Talia Einhorn, Jewish Divorce in the International Arena, in Private Law in the International Arena 135, 138 (Jürgen Basedow et al. eds., 2000); Ronald Warburg, Recovery for Infliction of Emotional Distress: Toward Relief for the Agunah, 18 Jewish L. Ann. 213 (2009); Benjamin Shmueli, Trading the Right to Divorce: On Refusal to Divorce, Suing the Husband for Damages, and Equalizing the Women’s Power to Bargain, 22 UCLA Women’s L.J. 39 (2015) [hereinafter Shmueli, Trading the Right to Divorce]; Benjamin Shmueli, What Have Calabresi & Melamed Got To Do with Family Affairs? Women Using Tort Law in Order to Defeat Jewish and Shari’a Law, 25 Berkeley J. Gender L. & Justice 125 (2010) [hereinafter Shmueli, Women Using Tort Law]; Yehiel S. Kaplan & Ronen Perry, Tort Liability of Recalcitrant Husbands, 28 Tel-Aviv U. L. Rev. 773 (2005) (in Hebrew); Yifat Bitton, Feminine Matters, Feministic Analysis and the Dangerous Gap between Them: A Response to Yehiel Kaplan and Ronen Perry, 28 Tel-Aviv U. L. Rev. 871 (2005) (in Hebrew). 25 Shmueli, Civil Actions, supra note 16, at 845, 848–9; Fournier, McDougall, & Lichtsztral, supra note 24, at 349. 26 Code of Maimonides, Laws of Divorce 2:20. 27 See supra note 20. We should not dismiss the point of view that the husband likes holding on to the get and being married, and therefore his refusal represents more than a negative externality. However, at most, this may be said with respect to a husband who has not been ordered to give a get by the Beth Din. It is possible that if a husband has not been ordered to give a get, he is prepared to pay in order to retain the right; what is applicable in such a case is a liability rule, rather than a property rule, in the sense of Calabresi and Melamed’s four rules (Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089 (1972)). The husband pays, because, after all, he is a tortfeasor. In this situation, for example, awarding compensation to the victim of refusal without transferring to her the right (to divorce) may be relevant. In other words, the husband may have a right to retain the get if he has not been officially ordered by the Beth Din to hand it over, and society will not intervene with respect to status, i.e. it will not afford property relief, but it will say that he must pay for the right in the sense of a liability rule (i.e. damages rather than injunction). See, e.g., Shmueli, Women Using Tort Law, supra note 24; Shmueli, Trading the Right to Divorce, supra note 24, at 82–5. Robert Cooter distinguishes between price and sanction, and this payment may conceivably be regarded as the cost of upholding the right, in light of the fact that the husband’s retention of the right is injurious to his wife, who is unable to divorce. See Robert Cooter, Prices and Sanctions, 84 Colum. L. Rev. 1523 (1984). If the Beth Din has already ordered the husband to give a get, it would seem that an act of refusal would only entail negative externalities. The husband no longer has a right to maintain the marriage. Instead, the right to divorce now belongs to the wife, and the husband has the duty to uphold this right. If he does not do so, and he is in breach of the duty imposed upon him, the externalities of his act are purely negative. 28 Blecher-Prigat & Shmueli, supra note 24. 29 In September 2018, the first case of indictment of a recalcitrant husband occurred in Israel. The husband was convicted in April 2019. The decision has not been yet published. 30 Shayara Bano v. Union of India, (2017) A.I.R. S.C. 4609 (India). See also Salman Khrushid, Triple Talaq: Examining Faith (2018) (discussing in depth the implications of this decision). 31 See Shachar, supra note 24. 32 See supra note 18. 33 Shmueli, Civil Actions, supra note 16, at 825, 833, 864–5. See also Guido Calabresi, The Future of Law and Economics: Essays in Reform and Recollection (2016) (arguing that the get issue is an example of “a liability rule being employed to further collective aims, while still not going to a fully command entitlement structure”: id. at 125). By assessing very high damages, and making these part of the liability rule, the collectivity seeks to make the entitlement come close to inalienability. (Id. at 120). For various moral or even religious reasons, a polity may not want to make certain conduct criminal, and yet may wish to deter it nearly totally. A huge liability-rule assessment approaching inforce criminal sanctions may then be optimal. One rather dramatic example, so ably discussed by Shmueli, is the use of the liability rule to induce orthodox Jewish males to issue a “get” and thereby allow their wives a religious divorce and remarriage. (Id. at 129). 34 See supra text accompanying note 25. 35 See also Benjamin Shmueli, Post Judgment Bargaining with a Conversation with the Honorable Judge Prof. Guido Calabresi, 50 Wake Forest L. Rev. 1181 (2015) [hereinafter Shmueli, Post Judgment Bargaining]. 36 Lavi, supra note 20; Dichovsky, supra note 20. 37 File No. 7041-21-1 Chief Rabbinical Court, A. v. B (Nov. 3, 2008), Nevo Legal Database (by subscription, in Hebrew). But see Amihai Radzyner, Arranging Gets after Tort Actions and the Policy of Publication of Rabbinical Court Judgments, 45 Hebrew U. L. Rev. 5 (2015) (arguing that there is a difference between rabbinical courts’ rhetoric and substance, and in practice these actions are effective). 38 Shmueli, Civil Actions, supra note 16, at 826, 832–4, 853, 857–8, 868, 874. 39 Id. at 866, 869; Lazerow, supra note 24, at 113, 115. 40 Shmueli, Civil Actions, supra note 16, at 864–73. 41 Id. at 856; 2016 Resolution: Requiring the Use of Prenuptial Agreements for the Prevention of Get-Refusal (Sept. 22, 2016), https://bit.ly/30BZxdO. 42 Lazerow, supra note 24, at 115; Shmueli, Civil Actions, supra note 16, at 866. 43 Shmueli, Civil Actions, supra note 16, at 866. 44 See Amihai Radzyner, Problematic Halakhic “Creativity” in Israeli Rabbinical Courts Rulings, 20 Jewish L. Ann. 103 (2013). 45 See Benjamin Shmueli & Moshe Phux, Contract Actions for Get (Jewish Divorce Bill) Refusal, 10 Haifa L. Rev. 345 (2018) (in Hebrew). 46 See Shmueli, Civil Actions, supra note 16, at 868. 47 Id. at 870. 48 Id. 49 Id. at 868–9. See also Light v. Light, 2012 Conn. Super. LEXIS 2967 (Dec. 6, 2012). 50 Shmueli, Civil Actions, supra note 16, at 869–70. 51 See HCJ 104/06 Center for Women’s Justice v. Rabbinical Courts Administration (Sept. 19, 2010), esp. ¶ 4, Nevo Legal Database (by subscription, in Hebrew). 52 Id. 53 Federal Judge, former Dean of the Yale Law School and one of the founding fathers of the Law and Economics school. See Shmueli, Post Judgment Bargaining, supra note 35, at 1226–7. 54 See Gneezy et al., supra note 6, at 193–4, 199–202. 55 According to Calabresi, Guest Statutes failed in the United States (e.g. Ala. Stat. § 32-1-2 or Neb. Rev. Stat. §§ 25–1, 237). These statutes attempted to avoid fraud involving a person who was injured in a car and claimed that the driver was negligent; the driver agreed and his insurance paid the victim. These laws failed because if a person wishes to cheat, they will succeed in another way. For example, the passenger could say that they purchased the gasoline. (Conversation with the author, New Haven, CT, Feb. 13, 2015). 56 For discussions of whether reducing the prison sentence of the refuser in exchange for giving the get was liable to entail a coerced get, see Joseph Goldberg, Coerced Get 36–9 (2003) (in Hebrew); Lavi, supra note 20, at 163–4; Shlomo Dichovsky, Lev Shome’a Leshlomo 142–51 (2014) (in Hebrew); Shlomo Dichovsky, Recommending Reduction of Sentence as a Means of Compelling a Get, 1 Tehumin 248 (1980) (in Hebrew). It is still difficult, however, to compare a situation in which a person does not receive something to a situation in which he is threatened that something which he believes belongs to him will be taken away. A negative incentive affects the ability to choose, whereas a positive incentive does not. According to some views, there is no compulsion as long as the refuser has a choice whether or not to divorce. See Goldberg, id. at 262. 57 Gneezy et al., supra note 6, at 192, 195. 58 See id. at 193–4, 199–202. 59 Galle, supra note 4, at 809–10. 60 De Geest & Dari-Mattiacci, supra note 1, at 345. 61 Id. at 392. 62 Galle, supra note 4, at 849. 63 Id. 64 Stefanie Engel, Stefano Pagiola, & Sven Wunder, Designing Payments for Environmental Services in Theory and Practice: An Overview of the Issues, 65 Ecological Econ. 663, 669 (2008). 65 Galle, supra note 4, at 801 (examining poorer populations, which receive subsidies to purchase health insurance, whereas other segments of society are liable to a sanction, i.e. to pay more or be fined if they do not purchase health insurance). 66 Erin E. Dine, Comment: Money Will Likely Be the Carrot, but What Stick Will Keep ACOs Accountable?, 47 Loy. U. Chi. L.J. 1377 (2016) (explaining that this solution is desirable, with a view to achieving a balance between rewarding the provision of a cheap medical service on the one hand, and concern about medical negligence lawsuits due to the lower quality of a cost-cutting cheap service on the other). 67 Smith, supra note 11, at 695–6. 68 Victor E. Schwartz & Phil Goldberg, Carrots and Sticks: Placing Rewards As Well As Punishment in Regulatory and Tort Law, 51 Harv. J. Legis. 315 (2014). 69 Id. at 363. 70 Galle, supra note 4, at 831. 71 Calabresi & Melamed, supra note 27. 72 Id. at 1115–21. 73 On combining rules 5 and 6, see Ian Ayres & Paul M. Goldbart, Optimal Delegation and Decoupling in the Design of Liability Rules, 100 Mich. L. Rev. 1, 6 (2001); Ian Ayres, Monsanto Lecture, Protecting Property with Puts, 32 Val. U. L. Rev. 793 (1998). 74 Ronen Avraham, Modular Liability Rules, 24 Int’l Rev. L. & Econ. 269, 272 (2004). See also Henry E. Smith, Property and Property Rules, 79 NYU L. Rev. 1719, 1794–5 (2004). 75 Id. at 272; Ayres & Goldbart, supra note 73, at 5. 76 Ayres & Goldbart, supra note 73, at 5. 77 Id. at 5. 78 Avraham, supra note 74, at 269. 79 Ayres & Goldbart, supra note 73, at 33–4. 80 See, generally, Cass R. Sunstein, Lives, Life-Years, and Willingness to Pay, 104 Colum. L. Rev. 205, 229–30 (2004). 81 Omri Ben-Shahar & Anu Bradford, Reversible Rewards, 15 Am. L. & Econ. Rev. 156 (2012). 82 Id. at 160–1. 83 Id. at 157. 84 Id. at 163. 85 Id. at 175–6. 86 Id. at 158, 181–2. 87 Note that the refuser is not offered the entire amount, in order not to constitute too great an incentive to refuse initially. 88 Ben-Shahar and Bradford, wishing to avoid moral hazard, were not in favor of funds consisting of deposits from many people, and of needing to pay anew in every case of violation. It would seem that in our case, and due to the nature of marital relations, a fund that will pay to violators-refusers will not lead to serial behavior. 89 Cf. Judah Dick, Is an Agreement to Deliver or Accept a Get in the Event of a Civil Divorce Halakhically Feasible?, 21 Tradition 91, 94 (1983) (offering a mechanism through including an appropriate clause in a pre-nuptial agreement. See also Breitowitz, supra note 20). In fact, this is similar to other provisions of liquidated damages that appear nowadays in prenuptial agreements. Unfortunately, in certain parts of the world those agreements are not popular. 90 For example, if people were to know exactly when their debts might be discharged under the laws of bankruptcy, they would act and plan accordingly from the outset; they would accumulate debts and discharge them by law. We are indeed interested in giving bankrupts a second chance by way of discharging of debts, but this is only retroactively. See Yuval Feldman & Shahar Lifshitz, Behind the Veil of Legal Uncertainty, 74 L. & Contemp. Prob. 133 (2011). 91 This was in fact done recently in New York as well as by the Israeli rabbinical court (File No. 975433/10 Chief Rabbinical Court (Apr. 12, 2016)). This course of action is also open to a state civil court, if the victim agrees: see State Prosecutor Guideline No. 2.2 Prosecution Policy and Punishment for Non-Compliance with a Judicial Order of the Rabbinical Court granting a divorce (Nov. 10, 2016), https://bit.ly/3iiHrnl [hereinafter Guideline No. 2.2]. But here I refer to a permanent list and not to a concrete court-mandated gag order as is usually done in certain states regarding family affairs. 92 See File No. 975433/10 Chief Rabbinical Court (Apr. 12, 2016); Guideline No. 2.2, supra note 91. 93 Cf. Helfand, supra note 16, Part III.B. 94 “Partisan” shaming may “legitimize” counter-shaming of the refuser and those close to him, and cycles of revenge and even a danger of mutual lawsuits for libel and slander. 95 The proposed IMFF can be practical and applicable, and it can be compared to pension mechanisms, for example. Due to space limitations, a preliminary feasibility model that has been prepared is not included in the text of the article, but see the online Appendix which offers a brief explanation of the feasibility model for IMFF and a table demonstrating it. © The Author(s) 2021. Oxford University Press and New York University School of Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)
TI - Sticks, carrots, or a hybrid mechanism: The test case of refusal to divorce
JF - International Journal of Constitutional Law
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