Alone Together: Law and the Meanings of Marriage

292 Pages·1999·17.05 MB·English

by  Milton C. Regan

Alone Together
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Alone Together
Law and the Meanings of Marriage
MILTON C. REGAN, JR.
New York Oxford
Oxford University Press
1999
Oxford University Press
Oxford N™ York
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Copyright CD 1999 by Oxford University Press, inc.
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Selections from IniltpemltKe 11m by Richard l-orcl. Cop\ right © 1995. Reprinted with
the permission of Alfred A. Knopf, Inc.
Raymond Carver, "Late Fragment," from A :Vrir Path M Ilir Valerjall Copyright © 198
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library of Congress Oatalogmg-in-Puh!irauon Data
Regan, Milton C.
Alone together : law and the meanings of marriage / Viilton C..
Regan, |r.
p. cm.
Includes bibliographical iclcrcnccs and index.
ISBN 0- 19- 51 HIM X
1. Husband anil wile United Slates 2, Husband and wife --
Psychological aspects. .!. Husband and wife—Social aspects.
I. 'Mile.
KK509 R44 1999
346,73(11 '63 dc21 97-512S3
9 8 7 (> 5 4 3 2 I
Printed in the United States of America
on andTree paper
TO NANCY
And did you get what
you wanted jrom this life, even so?
1 did.
And what did you want'
To call myself beloved, to feel myself
beloved on the earth.
Raymond Carver
"Late Fragment"
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Preface
n Richard Ford's novel Independence Day, the protagonist
I
muses about his ex-wife, Ann, and his current compan-
ion, Sally. "In marriage," he observes, "there's the gnashing, cold but also cozy
fear that after a while there'll be no me left, only me chemically amalgamated with
another\,}" By contrast, "the proposition with Sally is that there's just me. Forever.
I alone would go on being responsible for everything that had me in it; no other,
only me and my acts, her and hers, somehow together—which of course is much
more fearsome" (1995, p. 177).
Ford's narrator succinctly expresses both the vision that propels us toward
marriage and the fear that sometimes awaits us when we arrive. We want to be
partners in a relationship of shared meaning. We also, however, want to remain
individuals with our own unique sense of identity. There may be less of a con-
sensus on exactly what marriage means in the modern world, but this set of
contending desires seems inescapable.
In this book, I suggest that appreciation of this tension can help inform our
ideas about how law should deal with marriage. I will examine three issues in an
effort to explore this theme in some depth: the use of economic concepts in legal
analysis of marriage and divorce, the law governing the ability of one spouse to
testify against another, and the rules governing financial rights and responsibilities
at divorce. Each of these issues, 1 will argue, raises the question of the relative
weight that we should give to spouses as individuals and as participants in a
shared community.
As I will make clear, resolving these issues is not a matter of formulating a
set of general principles and then applying them to particular cases. Rather, my
analysis is meant to serve as an exercise in practical reasoning, which is sensitive
to the many incommensurable values that we regard as relevant in the various
contexts in which we think about marriage. It is for this reason that I confine
myself to these three issues, rather than attempting to analyze a broad range of
questions. Examination of them is meant to provide what scholars of practical
reasoning call "exemplars." These offer guidance by illustrating practical reasoning
in action rather than by pursuing the entailments of logical propositions.
The approach that 1 suggest will not speak to all aspects of marriage. That
relationship has many dimensions, and therefore fruitfully can be seen from
several different angles of vision. I do believe, however, that the framework I
employ speaks to a deep ambivalence about marriage in an age that places a high
value on both intimacy and individual autonomy. As such, it may shed light on
the contradictory impulses that our legal treatment of marriage both shapes and
reflects. In family Law and the Pursuit of Intimacy, I suggested that we should not
embrace in unqualified fashion a Inuncwork of individualism as the organizing
principle of family law. That book was an effort to remind us of the important
insights that a communal perspective on tamilv life might ofler. My emphasis on
this dimension reflected not the belief that the communal paradigm alone should
govern family law, hut the sense thai a restoration of balance was necessary. This
book seeks to explore how such a balance might be struck in different settings
with respect to the relationship of marriage. Marriage is particularly apt for such
an analysis, since it is a relationship formed by individual choice that nonetheless
generates a connection whose significance is not lully captured by the idea of
consent. My hope therefore is to extend the ideas in my prior work In offering
case studies of how we might maintain a dynamic equilibrium in family law by
giving sufficient weight to both individual and communal dimensions of family
life. More broadly, this exercise also may serve as an illustration of the complexity
of any attempt to draw on both liberal and communitarian accounts of social
life in addressing concrete questions of law and policy.
viii PREFACE
Acknowledgments
Ihave been fortunate to have had insightful help from a
number of people as I have worked on this book. Carrie
Menkel-Meadow, Nancy Sachs, Jana Singer, Mark Tushnet, and Robin West have
reviewed drafts and discussed with me on an ongoing basis the ideas that run
throughout each chapter of the book. Molly Shanlcy not only provided important
insights in our discussions, but graciously offered perceptive comments on the very
last draft of the entire manuscript. In addition, conversations with Elizabeth Scott
about her work and mine have been valuable occasions for assessing the significance
of liberal and communitarian thought to family law. In preparing chapters 2, 5, and
6 1 benefited from the scrutiny and comments of participants at a symposium on
New Directions in Family Law at the University of Virginia Law School, including
formal symposium commentaries by Dan Ortiz and Susan Williams; discussion with
colleagues in the Georgetown University Law Center faculty Workshop; and from
the review of various versions of those chapters by Anita Allen, Bob Axelrod, Kate
Bartlett, Cregg Bloche, Peg Brinig, Peter Byrne, Jules Colcman, Ann Laquer Estin,
Steve Goldberg, Robert Post, Larry Rosen, Paul Rothstein, Elizabeth Scott, Mike
Seidman, and Gerry Spann. Heidi Eeldman also provided a helpful review of chap-
ters 2. 3, and 4. Portions of the chapters 2, 5, and 6 have appeared in somewhat dif-
ferent form in "Spousal Privilege and the Meanings of Marriage," in volume 81 of
the Virginia Law Review. In preparing chapters 3 and 4 I received valuable criticism and
suggestions from participants in the Georgetown University Law Center Faculty
Workshop and from June Carbone, Lisa Hemzerling, Avery Katz, Richard Posner,
Steve Salop, Warren Schwartz, and Lynn Stout. My work on chapters 7 and 8 was
greatly aided by the review and discussion of this material at the Georgetown Uni-
versity Law Center Symposium on Divorce and Feminist Legal Theory, including a
formal commentary by Carol Rose; at a conference on "Families and Law: Chang-
ing Values, Rights, and Obligations," sponsored by the American Bar Association
Commission on College and University Legal Studies; by comments from col-
leagues Richard Chuscd, Bill Vukowich, and Wendy Williams and by extensive dis-
cussions with Joan Williams. A portion of these chapters appears in somewhat dif-
ferent form in "Spouses and Strangers: Divorce Obligations and Property Rhetoric,"
in volume 82 of the Georgetown Lav,' journal,
I also would like to thank Jodi Short, Grace Won, and the research assistants
under the direction of Karen Summerhill at the Edward Bennett Williams Library