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In this paper, we will incorporate gender consciousness into critiques of the rational actor model by revisiting Carol Gilligan's account of moral development. Economics itself, led by the insights that have come from game theory, is reexamining trust, altruism, reciprocity and empathy. Behavioral economics, defined as "the combination of psychology and economics that investigates what happens in markets in which some of the agents display human limitations and complications," further explores the implications of a more robust conception of human motivation. We argue that the most likely source for a comprehensive theory will come from the integration of behavioral economics with behavioral biology, and that this project will in turn depend on the insights that come from evolutionary analysis, genetics and neuroscience. Considering the biological basis of human behavior, however, and, indeed, realistically considering the role of trust, altruism, reciprocity and empathy in market transactions, we argue, will require reexamination of the role of gender in the construction of human society.

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

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GWU Law School Public Law Research Paper No. 276; GWU Legal Studies Research Paper No. 276

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