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Theories of Contractarians and their Critics: Marriages and Corporations

  • Robert A. Hillman
Part of the Law and Philosophy Library book series (LAPS, volume 28)

Abstract

Legal scholars increasingly utilize contract “paradigms” or models to analyze diverse relations such as marriages, corporations, creditors and debtors, and private associations.1 For example, many marriage theorists assert that distinct social norms no longer govern the conduct of marriage.2 Mandatory state laws regulating the family unit, grounded on general societal norms, are therefore antiquated. The obsolescence of these norms requires a new theoretical structure to govern marriage.3 Some marriage theorists have set forth a contractarian model to accommodate the idiosyncratic norms of individual marriages. The model recognizes and enforces private agreements made between spouses during marriage, governing marriage support, dispute resolution, lifestyles, or even marriage duration.4 The model offers a rationale for protecting the economic and social interests of the disfavored spouse under existing state law, typically the wife.5

Keywords

Corporate Governance Supra Note Good Faith Fiduciary Duty Marriage Partner 
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

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Notes

  1. 2.
    See generally Marjorie M. Shultz, Contractual Ordering of Marriage: A New Model for State Policy, 70 Calif. L. Rev. 204 (1982).Google Scholar
  2. 3.
    See generally Marjorie M. Shultz, Contractual Ordering of Marriage: A New Model for State Policy, 70 Calif. L. Rev. 204 (1982). at 207–08.Google Scholar
  3. 4.
    See generally Marjorie M. Shultz, Contractual Ordering of Marriage: A New Model for State Policy, 70 Calif. L. Rev. 204 (1982). at 219–224.Google Scholar
  4. 5.
    See, e.g., Lenore J. Weitzman, The Marriage Contract 230 (1981) (“Modernday feminists have… embraced the marriage contract as a means of establishing an egalitarian relationship in defiance of the law’s sex-based inequalities.”);Google Scholar
  5. 5a.
    Kris Jeter & Marvin B. Sussman, Each Couple Should Develop a Marriage Contract Suitable to Themselves, in Current Controversies in Marriage and Family 283,283 (Harold Feldman & Margaret Feldman, eds., 1985) (“Today the personal marriage contract bears the potential for couples to form equitable dyadic relationships….”); Marjorie M. Shultz, Contractual Ordering of Marriage: A New Model for State Policy, 70 Calif. L. Rev. 204, at 271. See also Marjorie M. Shultz, Contractual Ordering of Marriage: A New Model for State Policy, 70 Calif. L. Rev. 204. at 316–17 (wife’s claim for support to continue her education); Frances E. Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96 Harv. L. Rev. 1497, 1504–07 (1983); Marsha Garrison, Marriage: The Status of Contract, 131 U. Pa. L. Rev. 1039, 1043–44 (1983)Google Scholar
  6. 5b.
    reviewing Lenore J. Weitzman, The Marriage Contract (1981)) (“traditional marriage contract… perpetuates the subjugation of women,” interpreting L. Weitzman.Google Scholar
  7. 6.
    Marjorie M. Shultz, Contractual Ordering of Marriage: A New Model for State Policy, 70 Calif. L. Rev. 204 (1982), at 210 (discussing skeptics). See also Carol Weisbrod, The Way We Live Now: A Discussion of Contracts and Domestic Arrangements, 1994 Utah L. Rev. 777, 779 (discussing skeptics).Google Scholar
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    Ira M. Ellman, The Theory of Alimony, 11 Cal. L. Rev. 1, 16-23 (1989).Google Scholar
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    William W. Bratton, Jr., The “Nexus of Contracts” Corporation: A Critical Appraisal, 74 Cornell L. Rev. 407, 409 (1989) (describing contractualism) [hereinafter Bratton, Nexus of Contracts].Google Scholar
  10. 9.
    William W. Bratton, Jr., The “Nexus of Contracts” Corporation: A Critical Appraisal, 74 Cornell L. Rev. 407, 409 (1989) (describing contractualism) [hereinafter Bratton, Nexus of Contracts]. at 417. See also Frank H. Easterbrook & Daniel R. Fischel, The Corporate Contract, 89 Colum. L. Rev. 1416,1418 (1989) (“[T]he corporate structure is a set of contracts through which managers and certain other participants exercise a great deal of discretion that is ‘reviewed’ by interactions with other self-interested actors.”). For Easterbrook and Fischel’s latest view, see Frank H. Easterbrook & Daniel R. Fischel, The Economic Structure of Corporate Law (1991) [hereinafter Easterbrook & Fischel, Economic Structure].Google Scholar
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    See, e.g., Henry M. Butler, The Contractual Theory of the Corporation, 11 Geo. Mason U. L. Rev., Summer 1989, at 99, 100.Google Scholar
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    See John C. Coffee, No Exit?: Opting Out, The Contractual Theory of the Corporation, and the Special Case of Remedies, 53 Brook. L. Rev. 919, 934 (1988) (discussing the view of interventionists) [hereinafter Coffee, No Exit].Google Scholar
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    Melvin A. Eisenberg, Contractarianism Without Contracts: A Response to Professor McChesney, 90 Colum. L. Rev. 1321 (1990) [hereinafter Eisenberg, Response]; Fred S. McChesney, Contractarianism Without Contracts? Yet Another Critique of Eisenberg, 90 Colum. L. Rev. 1332 (1990) [hereinafter McChesney, Another Critique]; Marjorie M. Shultz, Contractual Ordering of Marriage: A New Model for State Policy, 70 Calif. L. Rev. 204 (1982); Ira M. Ellman, The Theory of Alimony, 11 Cal.. L. Rev. 1, 16-23 (1989). See also Michael Trebilcock, The Limits of Freedom of Contract 23–57 (1993).Google Scholar
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    Marjorie M. Shultz, Contractual Ordering of Marriage: A New Model for State Policy, 70 Calif. L. Rev. 204 (1982), at 230-31.Google Scholar
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    Marjorie M. Shultz, Contractual Ordering of Marriage: A New Model for State Policy, 70 Calif. L. Rev. 204 (1982). at 232. For example, unlike other contracting parties, marriage partners cannot adjust the terms of their ongoing marriage. See Kris Jeter & Marvin B. Sussman, Each Couple Should Develop a Marriage Contract Suitable to Themselves, in Current Controversies in Marriage and Family 283,283 (Harold Feldman & Margaret Feldman, eds., 1985) (“Today the personal marriage contract bears the potential for couples to form equitable dyadic relationships….”) at 285, quoting Maynard v. Hill, 125 U.S. 190 (1888). See also Ira M. Ellman, The Theory of Alimony, 11 Cal. L. Rev. 1, 16-23 (1989), at 13. Under traditional marital arrangements the husband is head of the household and responsible for support, and the wife is in charge of “domestic services” and child care. Marsha Garrison, Marriage: The Status of Contract, 131 U. Pa. L. Rev. 1039, 1043–44 (1983) (reviewing Lenore J. Weitzman, The Marriage Contract (1981)) (“traditional marriage contract… perpetuates the subjugation of women,” interpreting L. Weitzman), at 1041-43.Google Scholar
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    See Marjorie M. Shultz, Contractual Ordering of Marriage: A New Model for State Policy, 70 Calif. L. Rev. 204 (1982), at 235. See also Lenore J. Weitzman, The Marriage Contract (1981)) (“traditional marriage contract… perpetuates the subjugation of women,” interpreting L. Weitzman)., at 239.Google Scholar
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    Lenore J. Weitzman, The Marriage Contract (1981)) (“traditional marriage contract… perpetuates the subjugation of women,” interpreting L. Weitzman)., at 231. For example, contracting partners would likely make unwise arrangements and create legal obligations unintentionally, which would cause dissatisfaction and disharmony. Lenore J. Weitzman, The Marriage Contract (1981)) (“traditional marriage contract… perpetuates the subjugation of women,” interpreting L. Weitzman).. at 241. For a discussion of the kinds of situations in which contract law should leave enforcement to nonlegal sanctions, see David Charny, Nonlegal Sanctions in Commercial Relationships, 104 Harv.L. Rev. 373(1990).Google Scholar
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    June Carbone, Economics, Feminism, and the Reinvention of Alimony: A Reply to Ira Ellman, 43 Vand. L. Rev. 1463, 1469 (1990). See also Marjorie M. Shultz, Contractual Ordering of Marriage: A New Model for State Policy, 70 Calif. L. Rev. 204 (1982), at 231–32; 280–82. Several states permit spouses to make enforceable agreements concerning property rights and post-separation support. Balfour v. Balfour, [1919], 2 K.B. 571, 579.; Marjorie M. Shultz, Contractual Ordering of Marriage: A New Model for State Policy, 70 Calif. L. Rev. 204 (1982), at 235. See, e.g., N.M. Stat. Ann. § 40-2-8 (1978) (“A husband and wife cannot by any contract with each other alter their legal relations, except of their property, and except that they may agree in writing, to an immediate separation, and may make provisions for the support of either of them and of their children during their separation.”); Cal. Civ. Code § 4802 (West 1983); Nev. Rev. Stat. § 123.080 (1986).Google Scholar
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    Marjorie M. Shultz, Contractual Ordering of Marriage: A New Model for State Policy, 70 Calif. L. Rev. 204 (1982), at 258. See also Carol Rose, Bargaining and Gender, 18 Harv. J. L.& Pub. Policy 547, 561 (1995) (“women benefit greatly from their ability to bargain”); Carol Weisbrod, The Way We Live Now: A Discussion of Contracts and Domestic Arrangements, 1994 Utah L. Rev. 777, 779 (discussing skeptics), at 783 (“everything is discussable in contract terms”).Google Scholar
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    Marjorie M. Shultz, Contractual Ordering of Marriage: A New Model for State Policy, 70 Calif. L. Rev. 204 (1982), at 249–53.Google Scholar
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    Marjorie M. Shultz, Contractual Ordering of Marriage: A New Model for State Policy, 70 Calif. L. Rev. 204 (1982). at 251. “Family status is no longer the central prestige-conferring mechanism in an age of mobility and urban anonymity.” Lenore J. Weitzman, The Marriage Contract (1981)) (“traditional marriage contract… perpetuates the subjugation of women,” interpreting L. Weitzman)., at 136.Google Scholar
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    See, e.g., Carol Weisbrod, The Way We Live Now: A Discussion of Contracts and Domestic Arrangements, 1994 Utah L. Rev. 777, 779 (discussing skeptics), at 810. The increasing frequency of divorce with society’s approbation underscores evolving marriage mores: “From being a scandalous and sinful rarity, virtually impossible for most people to achieve, divorce has become a morally neutral commonplace, available to all.” Neil McKendrick, Book Review, N.Y. Times, Nov. 4,1990 § VII (Book Review), at 12, col. 1 (reviewing Lawrence Stone, Road to Divorce (1990)).Google Scholar
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    Marsha Garrison, Marriage: The Status of Contract, 131 U. Pa. L. Rev. 1039, 1043–44 (1983), at 1043.Google Scholar
  28. 33.
    Marjorie M. Shultz, Contractual Ordering of Marriage: A New Model for State Policy, 70 Calif. L. Rev. 204 (1982), at 247 (quoting Sussman, Family Systems in the 1970′s: Analysis, Policies and Programs, 396 Annals 40, 42 (1971)).Google Scholar
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    Marjorie M. Shultz, Contractual Ordering of Marriage: A New Model for State Policy, 70 Calif. L. Rev. 204 (1982). at 314-15; Carol Weisbrod, The Way We Live Now: A Discussion of Contracts and Domestic Arrangements, 1994 Utah L. Rev. 777, 779 (discussing skeptics), at 815. “[T]he traditional marriage contract is now at odds with social reality.” Marsha Garrison, Marriage: The Status of Contract, 131 U. Pa. L. Rev. 1039, 1043–44 (1983), at 1043. The message of marriage contractarians includes a prescriptive agenda: “[A] decision to support private decisionmaking might lead the state to encourage the making of such contracts rather than just to tolerate them.” Marjorie M. Shultz, Contractual Ordering of Marriage: A New Model for State Policy, 70 Calif. L. Rev. 204 (1982), at 281.Google Scholar
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    Marjorie M. Shultz, Contractual Ordering of Marriage: A New Model for State Policy, 70 Calif. L. Rev. 204 (1982), at 248. See also id. at 274: “If the state no longer asserts that it is in a better position than the spouses to define the characteristics that mark the end of a marriage, then the state can hardly assert that it can best define the characteristics of an existing marriage.”Google Scholar
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    Marjorie M. Shultz, Contractual Ordering of Marriage: A New Model for State Policy, 70 Calif. L. Rev. 204 (1982). at 280. For a discussion of those areas of marriage that are traditionally regulated, see Marjorie M. Shultz, Contractual Ordering of Marriage: A New Model for State Policy, 70 Calif. L. Rev. 204 (1982). at 224-40. “[C]ourts have refused to enforce such agreements between spouses as: payment by one spouse to another for domestic, child care, or other services in the home; planned termination of the marriage after a given period of time; alteration of statutory duties of support; and provision in advance for the eventuality of divorce.” Marjorie M. Shultz, Contractual Ordering of Marriage: A New Model for State Policy, 70 Calif. L. Rev. 204 (1982). at 231.Google Scholar
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    Marjorie M. Shultz, Contractual Ordering of Marriage: A New Model for State Policy, 70 Calif. L. Rev. 204 (1982). at 331.Google Scholar
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    Lenore J. Weitzman, The Marriage Contract 230 (1981), at 339-41.Google Scholar
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    Lenore J. Weitzman, The Marriage Contract 230 (1981). at 284, 223, 260–61. Professor Weitzman also offers examples involving agreements as to the frequency of entertaining, attending the ballet, going on vacation, and responsibility for birth control. Lenore J. Weitzman, The Marriage Contract 230 (1981). at 298, 304. A few states already enforce antenuptial agreements dealing with post-divorce financial issues. See, e.g., Posner v. Posner, 233 So.2d 381 (Fla. 1970), rev’d on other grounds, 257 So.2d 530 (Fla. 1972).Google Scholar
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    See, e.g., Lenore J. Weitzman, The Marriage Contract 230 (1981), at 230 (“Modern-day feminists have… embraced the marriage contract as a means of establishing an egalitarian relationship in defiance of the law’s sex-based inequalities.”); Marjorie M. Shultz, Contractual Ordering of Marriage: A New Model for State Policy, 70 Calif. L. Rev. 204 (1982), at 271. See also id. at 316-317 (wife’s claim for support to continue her education); Olsen, supra note 5, at 1504–07; Marsha Garrison, Marriage: The Status of Contract, 131 U. Pa. L. Rev. 1039, 1043–44 (1983), at 1043–44 (“traditional marriage contract… perpetuates the subjugation of women”); Michael Trebilcock, The Limits of Freedom of Contract 23–57 (1993), at 57.Google Scholar
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    Marjorie M. Shultz, Contractual Ordering of Marriage: A New Model for State Policy, 70 Calif. L. Rev. 204 (1982). at 240. The term “solidarity norms” derives from Ian Macneil, Economic Analysis of Contractual Relations: Its Shortfalls and The Need for a “Pick Classificatory Apparatus,” 75 Nw. U. L. Rev. 1018 (1981).Google Scholar
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Copyright information

© Springer Science+Business Media Dordrecht 1997

Authors and Affiliations

  • Robert A. Hillman
    • 1
  1. 1.Cornell Law SchoolNew YorkUSA

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