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Author Topic: Marriage, contract law and other legal matters  (Read 1248 times) Average Rating: 0
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GiC
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« on: March 14, 2012, 04:52:35 PM »

Why does legitimacy matter?  Are we back in the middle ages?
What is wrong with the Middle Ages? Aren't moral values supposed to pass on unchanged from one generation to the next? Take for example the sin of idolatry or worship of strange gods. It was wrong then and it is wrong now.

I don't see Nektarios talking about 'morality' per se. He's asking about the question of legitimacy as applied to the children--who aren't guilty of anything whether the parents were married or not. He's asking why we should care whether or not children are legitimate (as opposed to the Middle Ages where there were definite legal as well as social issues around being a 'bastard'). I'm not sure if I agree with him, but the question itself is totally separate from the morality of the parents.

Exactly.  Illegitimacy is a legal concept that was primarily used in the middle ages.  It was important because it had the potential to exclude inheritance rights.  So getting back to my question, why on earth does it matter if a person is "legitimate" or "illegitimate"? 

Yes, the transition from ancient inheritance laws to modern contract law has rendered the issue of legitimacy irrelevant. But with that, it has also rendered the institution of marriage obsolete...they're both equally absurd in a modern context. So if we're going to argue about something as outdated as marriage, why not throw in discussions about ancient inheritance laws, the legitimacy of children, spiritual degrees of separation, etc.? You know, things that were relevant back when marriage was actually relevant.
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« Reply #1 on: March 14, 2012, 06:28:13 PM »

Why does legitimacy matter?  Are we back in the middle ages?
What is wrong with the Middle Ages? Aren't moral values supposed to pass on unchanged from one generation to the next? Take for example the sin of idolatry or worship of strange gods. It was wrong then and it is wrong now.

I don't see Nektarios talking about 'morality' per se. He's asking about the question of legitimacy as applied to the children--who aren't guilty of anything whether the parents were married or not. He's asking why we should care whether or not children are legitimate (as opposed to the Middle Ages where there were definite legal as well as social issues around being a 'bastard'). I'm not sure if I agree with him, but the question itself is totally separate from the morality of the parents.

Exactly.  Illegitimacy is a legal concept that was primarily used in the middle ages.  It was important because it had the potential to exclude inheritance rights.  So getting back to my question, why on earth does it matter if a person is "legitimate" or "illegitimate"? 

Yes, the transition from ancient inheritance laws to modern contract law has rendered the issue of legitimacy irrelevant. But with that, it has also rendered the institution of marriage obsolete...they're both equally absurd in a modern context. So if we're going to argue about something as outdated as marriage, why not throw in discussions about ancient inheritance laws, the legitimacy of children, spiritual degrees of separation, etc.? You know, things that were relevant back when marriage was actually relevant.

In some sense, I see where you are coming from.  But marriage is a contract between two willing parties and has evolved into a modernity. 

Yes, over the past few centuries we have redefined marriage to conform with modern contract law... coincidentally, in tandem with the rise of the merchant classes and the decline of the landed classes. Which is the entire reason we're even having this discussion, the Christian theology of marriage better corresponds to marriage under a feudal systems of laws than it does with modern contract-based marriage law; in the last century Rome has tried to reconcile the two leading to some very strange results (such as long marriages producing numerous heirs being annulled...something that simply didn't regularly happen outside the Byzantine Empire during the middle ages (and they had mechanisms such as a strong system of legal/spiritual adoption and friendship, without regard to age, to get around the legal problems caused by these annulments...in many ways, it was the precursor of modern contract-based marriage law)).

Until the theology of marriage is reconciled with the modern understanding of marriage (as has largely been done in the Protestant Churches, but it helps that they largely don't consider it to be a sacrament) practice and theory will not be consistent and these arguments will continue to have merit within theological circles.
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« Reply #2 on: March 14, 2012, 07:50:42 PM »

GiC, I think that analysis is uncharacteristically faulty.

If marriage is a contract, (1) why are the "terms" of the contract prescribed; and (2) why can the contract not be amended or undone by a subsequent contract? Closely related to (2), why, in so many common law jurisdictions, are pre-nuptial agreements of no force?

If only marriage really were contractual! Perhaps then our courts would properly enforce the terms of such a noble agreement.

You don't mean 'so many common law jurisdictions', you mean the United Kingdom, right? Because they work just fine in the US, Canada, South Africa, and Australia. But, yes, in the UK they have very limited force (though the Law Commission is currently considering the issue and this is likely to change later this year); but as a country that still maintains their Landed Nobles and even preserves their birthright to sit in the Upper House of Parliament, they tend to change far more slowly than most countries, be they common or civil law nations. And marriage is certainly still changing, but the change to understanding it as a contract is pretty much established in the statutory law of most western nations.

Other than that, the only major exception is in the matter of custody of children. But children are not property and parents cannot deal with them as though they were property in contracts; since they are Citizens, the state, not the parent, has authority over the children and it is the right of the state to decide who can act as an instrument of their authority. But this is the same in any other case of contract law, Google and Intel can't sign a contract that forces IBM to merge with one of them, they could merge themselves (anti-trust law aside), but they can't make their agreement binding on a third party.

Beyond that, the restrictions on annulments are the same as for any other contract: they have to be voluntary, full disclosure is required, it's very strongly recommended (though not always required) that they be in writing, they can't be unconscionable, etc. Pre-nuptial agreements do tend to be easier to overturn in court than say a corporate contract, but that's because private citizens, on average, are not as good at drawing up contracts as corporate lawyers.

Oh, and yes, marriage contracts can be 'amended or undone by a subsequent contract', divorce being the most obvious example, but there are also post-nuptial agreements (though it is a lot harder to prove voluntariness in these), they can also be modified by a will, or even a business contract (e.g. the sale of property obviously means that your spouse won't inherit it). Yes, most jurisdictions have a  statutory default contract for matrimonial regimes that will apply if no additional steps are taken, but the defaults can be heavily modified by a pre-nuptial agreement.
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« Reply #3 on: March 14, 2012, 11:15:13 PM »

You don't mean 'so many common law jurisdictions', you mean the United Kingdom, right? Because they work just fine in the US, Canada, South Africa, and Australia. But, yes, in the UK they have very limited force (though the Law Commission is currently considering the issue and this is likely to change later this year); but as a country that still maintains their Landed Nobles and even preserves their birthright to sit in the Upper House of Parliament, they tend to change far more slowly than most countries, be they common or civil law nations. And marriage is certainly still changing, but the change to understanding it as a contract is pretty much established in the statutory law of most western nations.

Contract is, itself, a creature of the common law. Australian "financial agreements", at least, depend entirely upon statute for their limited force. The position at common law remains that parties to a marriage cannot oust the jurisdiction of the court by private agreement. I would be surprised to learn this is not the case in Canada and South Africa, &c.

Other than that, the only major exception is in the matter of custody of children. But children are not property and parents cannot deal with them as though they were property in contracts; since they are Citizens, the state, not the parent, has authority over the children and it is the right of the state to decide who can act as an instrument of their authority.

I think this analysis is mostly correct, though tends to go beyond the common law conception of the Crown as parens patriae.

Beyond that, the restrictions on annulments are the same as for any other contract: they have to be voluntary, full disclosure is required, it's very strongly recommended (though not always required) that they be in writing, they can't be unconscionable, etc.

This analysis only pertains to defects in contract-formation, not dissolution for reasons other than the contract being void from the outset, eg: frustration, repudiation, termination for cause, discharge by agreement. In any case, marriages are frequently held void for reasons other than the usual reasons contracts are held void from the outset -- eg: you can't marry your father, though you could if marriage were a contract.

Oh, and yes, marriage contracts can be 'amended or undone by a subsequent contract', divorce being the most obvious example, but there are also post-nuptial agreements (though it is a lot harder to prove voluntariness in these),

Divorce is not an example of the undoing of a contract by consent, as divorce can be applied against an unwilling party who wishes for the contract to be enforced.

they can also be modified by a will, or even a business contract (e.g. the sale of property obviously means that your spouse won't inherit it).

This is misleading, as you are confusing the modification of the subject matter of the contract with the contract itself.

Yes, most jurisdictions have a  statutory default contract for matrimonial regimes that will apply if no additional steps are taken, but the defaults can be heavily modified by a pre-nuptial agreement.

This seems to be a fair statement, though I still think your characterisation of the common law of marriage and divorce as a "statutory default contract" is incorrect.

I am no legal genius, so I could be wrong about much of the above. Unfortunately, I think your view of the law is gathering strength.
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« Reply #4 on: March 15, 2012, 02:34:36 PM »

You don't mean 'so many common law jurisdictions', you mean the United Kingdom, right? Because they work just fine in the US, Canada, South Africa, and Australia. But, yes, in the UK they have very limited force (though the Law Commission is currently considering the issue and this is likely to change later this year); but as a country that still maintains their Landed Nobles and even preserves their birthright to sit in the Upper House of Parliament, they tend to change far more slowly than most countries, be they common or civil law nations. And marriage is certainly still changing, but the change to understanding it as a contract is pretty much established in the statutory law of most western nations.

Contract is, itself, a creature of the common law. Australian "financial agreements", at least, depend entirely upon statute for their limited force. The position at common law remains that parties to a marriage cannot oust the jurisdiction of the court by private agreement. I would be surprised to learn this is not the case in Canada and South Africa, &c.

Yes, it is a departure from traditional common law that evolved in the context of a feudal system and is almost always statutory, but legislative bodies do have the authority to change common law through statue and that's exactly what has happened in common law countries around the world with regard to marriage and it looks like the UK is the next country to be taking these steps; however, since the UK still maintains a feudal system of nobles it is far more difficult for them to change these laws since they have to take the inheritance of peerages (that include a seat in the House of Lords) into account, they will most likely end up with two sets of marriage laws, one to govern hereditary peers according to the common law tradition and another law based on contracts for everyone else which might be necessary to prevent the buying and selling of peerages. This is a real legal concern, but one unique to the United Kingdom.

But you're right, it is a departure from the common law understanding of marriage and that's my point, the decline of the landed classes and the rise of the merchant classes lead to a different understanding of inheritance (over a few generations Gavelkind is devastating to a class of landed nobles, but the negative effects are not nearly so pronounced amongst the merchant classes) which has in turn changed our social understanding of marriage.

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Other than that, the only major exception is in the matter of custody of children. But children are not property and parents cannot deal with them as though they were property in contracts; since they are Citizens, the state, not the parent, has authority over the children and it is the right of the state to decide who can act as an instrument of their authority.

I think this analysis is mostly correct, though tends to go beyond the common law conception of the Crown as parens patriae.

That's because I was arguing from Locke (who is essential to our understanding of common law in this Republic, he is perhaps even more important than Sir William Blackstone in America, though obviously less so in countries still under a monarchy), specifically his treatise "Consent and the Rights of Children" and it does go a bit beyond the common law concept of parens patriae because of the nature of sovereignty in a Republic as opposed to a monarchy. But, in general, similar concepts apply in monarchies, as you pointed out.

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Beyond that, the restrictions on annulments are the same as for any other contract: they have to be voluntary, full disclosure is required, it's very strongly recommended (though not always required) that they be in writing, they can't be unconscionable, etc.

This analysis only pertains to defects in contract-formation, not dissolution for reasons other than the contract being void from the outset, eg: frustration, repudiation, termination for cause, discharge by agreement. In any case, marriages are frequently held void for reasons other than the usual reasons contracts are held void from the outset -- eg: you can't marry your father, though you could if marriage were a contract.

Different types of contracts have different requirements, but most of them fall under the single issue of unconscionability. Of course, what is unconscionable is going to depend on the content of the contract and it will be a matter for the courts to decide. What is unconscionable in a marriage contract is not necessarily going to be the same as what's considered unconscionable in a corporate contract...it will overlap, but not be exactly the same.

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Oh, and yes, marriage contracts can be 'amended or undone by a subsequent contract', divorce being the most obvious example, but there are also post-nuptial agreements (though it is a lot harder to prove voluntariness in these),

Divorce is not an example of the undoing of a contract by consent, as divorce can be applied against an unwilling party who wishes for the contract to be enforced.

Yes, a marriage contract is easier to dissolve than many other contracts, but it's a necessity derived from contract law itself. Over the last century we have started to realize that length of the contract 'till death do us part' combined with the intimate nature of the contract is inherently unconscionable, so without a clause that allows it to be dissolved unilaterally any marriage would be null and void from the outset due to unconscionably. Unilateral divorce without fault is a  consequence of marriage falling under contract law, not evidence of divergence.

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they can also be modified by a will, or even a business contract (e.g. the sale of property obviously means that your spouse won't inherit it).

This is misleading, as you are confusing the modification of the subject matter of the contract with the contract itself.

The primary purpose of marriage in the eyes of the state is for matters of property distribution and inheritance; in fact, this is the only reason the state is even allowed to be involved in marriage in the United States, if it was involved for religious or cultural reasons the act of granting a marriage license would likely be a violation of the establishment clause (I'm not sure marriage licenses aren't in violation of the establishment clause anyway, but at least the economic implications give the state a viable argument for being allowed to issue them). So since the distribution of property is the sole legitimate use of civil marriage, any change in the manner in which property is distributed is a de facto change to the contract itself.

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Yes, most jurisdictions have a  statutory default contract for matrimonial regimes that will apply if no additional steps are taken, but the defaults can be heavily modified by a pre-nuptial agreement.

This seems to be a fair statement, though I still think your characterisation of the common law of marriage and divorce as a "statutory default contract" is incorrect.

I am no legal genius, so I could be wrong about much of the above. Unfortunately, I think your view of the law is gathering strength.

It is gathering strength, it has been ever since Locke, but as we can see with continuing arguments about the nature around the world and especially in the United States over the last few years, we still have a little ways to go. We're in the middle of the transition from common law marriage to contract law marriage, with some countries further along than others, but most the western world, both common and civil law jurisdictions alike, have settled on the contract law approach and full implementation seems almost inevitable at this point.
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« Reply #5 on: March 15, 2012, 02:48:26 PM »

Yes, it is a departure from traditional common law that evolved in the context of a feudal system and is almost always statutory, but legislative bodies do have the authority to change common law through statue and that's exactly what has happened in common law countries around the world with regard to marriage and it looks like the UK is the next country to be taking these steps; however, since the UK still maintains a feudal system of nobles it is far more difficult for them to change these laws since they have to take the inheritance of peerages (that include a seat in the House of Lords) into account, they will most likely end up with two sets of marriage laws, one to govern hereditary peers according to the common law tradition and another law based on contracts for everyone else which might be necessary to prevent the buying and selling of peerages. This is a real legal concern, but one unique to the United Kingdom.

As a lawyer, I was surprised to learn this! I think it is more accurate to say that the legislature can abrogate the common law, but not change it. Of course, statutory law has its own penumbra of common low, but I digress.

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This analysis only pertains to defects in contract-formation, not dissolution for reasons other than the contract being void from the outset, eg: frustration, repudiation, termination for cause, discharge by agreement. In any case, marriages are frequently held void for reasons other than the usual reasons contracts are held void from the outset -- eg: you can't marry your father, though you could if marriage were a contract.

Actually, civil annulments are pretty rare. The civil reasons for a void or voidable marriages compose a pretty short list.

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Different types of contracts have different requirements, but most of them fall under the single issue of unconscionability. Of course, what is unconscionable is going to depend on the content of the contract and it will be a matter for the courts to decide. What is unconscionable in a marriage contract is not necessarily going to be the same as what's considered unconscionable in a corporate contract...it will overlap, but not be exactly the same.

Except there are two different types of unconscionably: procedural and substantive. A party will only get relief from a contract when it is both procedurally and substantively unconscionable. It's pretty damn hard.

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Yes, a marriage contract is easier to dissolve than many other contracts, but it's a necessity derived from contract law itself. Over the last century we have started to realize that length of the contract 'till death do us part' combined with the intimate nature of the contract is inherently unconscionable, so without a clause that allows it to be dissolved unilaterally any marriage would be null and void from the outset due to unconscionably. Unilateral divorce without fault is a  consequence of marriage falling under contract law, not evidence of divergence.

But at best, only substantively unconscionable. How is it procedurally unconscionable? The only example I can think of is when Dwight tricked Angela into marrying him on "The Office" a few years ago.

A contract that allows either party to defect unilaterally is an illusory contract i.e. not a contract at all.

This is why civil marriage is not a contract. It is a license granted by the state.

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« Reply #6 on: March 15, 2012, 03:57:09 PM »

Yes, it is a departure from traditional common law that evolved in the context of a feudal system and is almost always statutory, but legislative bodies do have the authority to change common law through statue and that's exactly what has happened in common law countries around the world with regard to marriage and it looks like the UK is the next country to be taking these steps; however, since the UK still maintains a feudal system of nobles it is far more difficult for them to change these laws since they have to take the inheritance of peerages (that include a seat in the House of Lords) into account, they will most likely end up with two sets of marriage laws, one to govern hereditary peers according to the common law tradition and another law based on contracts for everyone else which might be necessary to prevent the buying and selling of peerages. This is a real legal concern, but one unique to the United Kingdom.

As a lawyer, I was surprised to learn this! I think it is more accurate to say that the legislature can abrogate the common law, but not change it. Of course, statutory law has its own penumbra of common low, but I digress.

That statement would probably be more accurate in several common law countries, such as the United Kingdom, but in the United States where common law is subservient to constitutional law, it can and has been changed and then that change incorporated into our common law tradition through the Supreme Court using the traditions of common law, such as stare decisis.

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Different types of contracts have different requirements, but most of them fall under the single issue of unconscionability. Of course, what is unconscionable is going to depend on the content of the contract and it will be a matter for the courts to decide. What is unconscionable in a marriage contract is not necessarily going to be the same as what's considered unconscionable in a corporate contract...it will overlap, but not be exactly the same.

Except there are two different types of unconscionably: procedural and substantive. A party will only get relief from a contract when it is both procedurally and substantively unconscionable. It's pretty damn hard.

"I knew I wanted to be married for the next couple years, but due to state law I was not given that option and was forced to either enter into a life long agreement or would be allowed no agreement at all." There you have it, procedural unconscionability; admittedly due to the actions of the state rather than the actions of the other party, but this powerlessness over the length of the agreement inherently places a party at a disadvantage during the initial negotiations and inevitably leads to inequality of bargaining power. The persons entering into the marriage are powerless to affect the terms about its duration, the only alternative is to not marry, an unacceptable alternative since marriage is considered a fundamental human right. But this issue won't come up since the state requires these contracts to have an escape clause, namely divorce.

Now, if you allowed a couple more liberty in setting their terms (say, requiring a renewal of the contract every 2-5 years) you might get around the procedural unconscionability. But I would still argue that a lifelong marriage contract that could not be unilaterally dissolved would run afoul of the 13th Amendment because the distribution of property within a marriage; now this is an argument specific to the United States, but I suspect that most western countries would invalidate a contract that resulted in involuntary servitude.

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Yes, a marriage contract is easier to dissolve than many other contracts, but it's a necessity derived from contract law itself. Over the last century we have started to realize that length of the contract 'till death do us part' combined with the intimate nature of the contract is inherently unconscionable, so without a clause that allows it to be dissolved unilaterally any marriage would be null and void from the outset due to unconscionably. Unilateral divorce without fault is a  consequence of marriage falling under contract law, not evidence of divergence.

But at best, only substantively unconscionable. How is it procedurally unconscionable? The only example I can think of is when Dwight tricked Angela into marrying him on "The Office" a few years ago.

Then you're not trying very hard...see above. Wink

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A contract that allows either party to defect unilaterally is an illusory contract i.e. not a contract at all.

This is why civil marriage is not a contract. It is a license granted by the state.

Really? You can't find an example of the use of escape clauses outside marriage law? Come one, you said you're a lawyer, you should be able to come up with one or two. Wink

I'm not a lawyer, I just do this stuff as a hobby, but I'm pretty sure the contract between AT&T and T-Mobile behind AT&T's recent failed attempt to acquire the same had escape clauses for both parties, I know AT&T had the option and I believe I recall T-Mobile having that option as well. Yes, there were serious consequences for invoking the escape clauses (in the end, it wasn't an issue, they both wanted the deal to go through, it's just that Uncle Sam had some reservations), but there are also consequences for a divorce in matters of custody and property distribution.

The courts have long rejected the idea that the presence of an escape clause implies that a contract is illusory.
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« Reply #7 on: March 15, 2012, 04:42:57 PM »

That statement would probably be more accurate in several common law countries, such as the United Kingdom, but in the United States where common law is subservient to constitutional law, it can and has been changed and then that change incorporated into our common law tradition through the Supreme Court using the traditions of common law, such as stare decisis.

In the US, every law is subservient to the Constitution. That, in fact, is the purpose of a constitution.

Like I said, the legislature does not change common low. It can abrogate it or codify it, but not change it.

I didn't comprehend the rest of your sentence because it was overly long. I would note that I only ever see "stare decisis" mentioned in the filings of "pro se" litigants.

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"I knew I wanted to be married for the next couple years, but due to state law I was not given that option and was forced to either enter into a life long agreement or would be allowed no agreement at all." There you have it, procedural unconscionability; admittedly due to the actions of the state rather than the actions of the other party, but this powerlessness over the length of the agreement inherently places a party at a disadvantage during the initial negotiations and inevitably leads to inequality of bargaining power. The persons entering into the marriage are powerless to affect the terms about its duration, the only alternative is to not marry, an unacceptable alternative since marriage is considered a fundamental human right. But this issue won't come up since the state requires these contracts to have an escape clause, namely divorce.

That is not what procedural unconscionably is. Procedural unconscionably relates to the manner in which the contract was entered. What you described is not that. You appeal to the actions of the state, but the state is not a party in the contract theory of marriage. Rather, the parties are the two spouses.

So no, it is not "there you have it".

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Now, if you allowed a couple more liberty in setting their terms (say, requiring a renewal of the contract every 2-5 years) you might get around the procedural unconscionability. But I would still argue that a lifelong marriage contract that could not be unilaterally dissolved would run afoul of the 13th Amendment because the distribution of property within a marriage; now this is an argument specific to the United States, but I suspect that most western countries would invalidate a contract that resulted in involuntary servitude.

See above. You have not described procedural unconscionably. As luck would have it, just a few weeks ago I delivered a presentation to some other attorneys on the latest law in unconscionably, particularly in the area of arbitration clauses. So, unless there has been some earth-shattering change in the law this month, I am pretty up to date on this stuff.

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Then you're not trying very hard...see above. Wink

I did see above. I saw that you do not understand what "procedural unconscionability" means.

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Really? You can't find an example of the use of escape clauses outside marriage law? Come one, you said you're a lawyer, you should be able to come up with one or two. Wink

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I'm not a lawyer, I just do this stuff as a hobby

It shows.

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but I'm pretty sure the contract between AT&T and T-Mobile behind AT&T's recent failed attempt to acquire the same had escape clauses for both parties, I know AT&T had the option and I believe I recall T-Mobile having that option as well. Yes, there were serious consequences for invoking the escape clauses (in the end, it wasn't an issue, they both wanted the deal to go through, it's just that Uncle Sam had some reservations), but there are also consequences for a divorce in matters of custody and property distribution.

The courts have long rejected the idea that the presence of an escape clause implies that a contract is illusory.

I have a contracts practice and I frankly do not know what you are talking about regarding "escape clauses". Escape clauses are pretty much exclusive to insurance contracts. They are usually in the "other insurance" section and provide that the insurer only needs to provide coverage if there is no other coverage available. I have no idea what you are talking about regarding the AT&T/T-Mobile deal.

What do you think an escape clause is?

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« Reply #8 on: March 15, 2012, 07:18:03 PM »

That statement would probably be more accurate in several common law countries, such as the United Kingdom, but in the United States where common law is subservient to constitutional law, it can and has been changed and then that change incorporated into our common law tradition through the Supreme Court using the traditions of common law, such as stare decisis.

In the US, every law is subservient to the Constitution. That, in fact, is the purpose of a constitution.

Yes, and despite all of our laws being subject to a constitution that made notable breaks feudal English law, we're still have a common law system. Which forces me to ask the question, what exactly do you think common law is?

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Like I said, the legislature does not change common low. It can abrogate it or codify it, but not change it.

I didn't comprehend the rest of your sentence because it was overly long. I would note that I only ever see "stare decisis" mentioned in the filings of "pro se" litigants.

You don't get around to reading SCOTUS transcripts/opinions too often, do you? They pretty much spend their time discussing two things: the impact of their decision on future hypothetical cases and past precedent. And I must confess, I can't remember the last time a pro se litigant who was not a member of the Supreme Court Bar argued a case before the Supreme Court (This piece of trivia actually sparked my interest, I was thinking Kolender v. Lawson, but I looked up the court transcript and it appears he argued his case up through the appellate court, but an amicus curiae argued the case before SCOTUS. You don't happen to know the last time this occurred, do you?). But, you're right, I'm sure stare decisis doesn't come up too often in traffic court.

But just to make sure I'm reading this right, are you really arguing that stare decisis is not the foundational principle of common law?

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"I knew I wanted to be married for the next couple years, but due to state law I was not given that option and was forced to either enter into a life long agreement or would be allowed no agreement at all." There you have it, procedural unconscionability; admittedly due to the actions of the state rather than the actions of the other party, but this powerlessness over the length of the agreement inherently places a party at a disadvantage during the initial negotiations and inevitably leads to inequality of bargaining power. The persons entering into the marriage are powerless to affect the terms about its duration, the only alternative is to not marry, an unacceptable alternative since marriage is considered a fundamental human right. But this issue won't come up since the state requires these contracts to have an escape clause, namely divorce.

That is not what procedural unconscionably is. Procedural unconscionably relates to the manner in which the contract was entered. What you described is not that. You appeal to the actions of the state, but the state is not a party in the contract theory of marriage. Rather, the parties are the two spouses.

So no, it is not "there you have it".

I was under the impression that "gross inequality of bargaining power" was, in and of itself, evidence of unconscionability; I have yet to come across anything that specifies that said "gross inequality of bargaining power" has to be caused by one of the parties. By that reasoning, if a man dying of thirst entered into a contract where he would owe his benefactor half his income for the rest of his life in exchange for a canteen of water, providing full disclosure and no coercion to enter into the contract on behalf of the benefactor, this contract would be upheld in court since the "gross inequality of bargaining power" was not actually caused by this so-called benefactor, he was merely taking advantage of pre-existing conditions that were entirely outside his control.

Perhaps you could point me to the existing case law that would support upholding that contract?

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Now, if you allowed a couple more liberty in setting their terms (say, requiring a renewal of the contract every 2-5 years) you might get around the procedural unconscionability. But I would still argue that a lifelong marriage contract that could not be unilaterally dissolved would run afoul of the 13th Amendment because the distribution of property within a marriage; now this is an argument specific to the United States, but I suspect that most western countries would invalidate a contract that resulted in involuntary servitude.

See above. You have not described procedural unconscionably. As luck would have it, just a few weeks ago I delivered a presentation to some other attorneys on the latest law in unconscionably, particularly in the area of arbitration clauses. So, unless there has been some earth-shattering change in the law this month, I am pretty up to date on this stuff.

No, I'm not describing procedural unconscionablity here, that was in the previous paragraph...please try to keep up. Smiley

Here I'm outlining a constitutional argument that would still be relevant even IF the issue of inequality of bargaining power were addressed (which it hasn't been). Forcing someone to remain in a contract, for their entire life without the possibility of escape, where they are expected to give the fruits of their labor to another without just compensation would amount to involuntary servitude. Forget common law, contract that essentially turns an individual into a slave would not be enforceable under the 13th amendment.

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Really? You can't find an example of the use of escape clauses outside marriage law? Come one, you said you're a lawyer, you should be able to come up with one or two. Wink

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I'm not a lawyer, I just do this stuff as a hobby

It shows.

You're right, it does, but the scary thing is that you're no better at this than I am and the only time I have to defend my position is when I'm killing time on an internet forum.

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but I'm pretty sure the contract between AT&T and T-Mobile behind AT&T's recent failed attempt to acquire the same had escape clauses for both parties, I know AT&T had the option and I believe I recall T-Mobile having that option as well. Yes, there were serious consequences for invoking the escape clauses (in the end, it wasn't an issue, they both wanted the deal to go through, it's just that Uncle Sam had some reservations), but there are also consequences for a divorce in matters of custody and property distribution.

The courts have long rejected the idea that the presence of an escape clause implies that a contract is illusory.

I have a contracts practice and I frankly do not know what you are talking about regarding "escape clauses". Escape clauses are pretty much exclusive to insurance contracts. They are usually in the "other insurance" section and provide that the insurer only needs to provide coverage if there is no other coverage available.

Exclusive to insurance, eh? Guessing you've never bought a house?

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I have no idea what you are talking about regarding the AT&T/T-Mobile deal.

Sorry, it's only been the leading legal story in the news for the past year...but I shouldn't have assumed you are familiar with it.

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What do you think an escape clause is?

Well I was under the impression that it was a clause in a contract that frees a party from the responsibility to execute the contract, does it mean something different at your law firm?
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« Reply #9 on: March 15, 2012, 09:17:08 PM »

Yes, and despite all of our laws being subject to a constitution that made notable breaks feudal English law, we're still have a common law system. Which forces me to ask the question, what exactly do you think common law is?

Do you think that a common law system cannot exist under a constitution?

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You don't get around to reading SCOTUS transcripts/opinions too often, do you? They pretty much spend their time discussing two things: the impact of their decision on future hypothetical cases and past precedent. And I must confess, I can't remember the last time a pro se litigant who was not a member of the Supreme Court Bar argued a case before the Supreme Court (This piece of trivia actually sparked my interest, I was thinking Kolender v. Lawson, but I looked up the court transcript and it appears he argued his case up through the appellate court, but an amicus curiae argued the case before SCOTUS. You don't happen to know the last time this occurred, do you?). But, you're right, I'm sure stare decisis doesn't come up too often in traffic court.

Actually, I don't. I bet you don't, either. I tend to only read the opinions that are in the news or have impact on my practice; a good example of the latter would be the AT&T Mobility v. Concepcion case, which is relevant to this discuss because it touched on unconscionability. I was able to cite it and the subsequent 11th Circuit case of Cruz v. Cingular Wireless, LLC (which followed Concepcion) in a recent case of mine in order to compel arbitration. As a practical matter, the US Supreme Court is very rarely cited in state court practice, and not that much more in federal practice. Intermediate appellate courts are what is cited as authority the great majority of the time, although in federal court, district court decisions are also good authority.

Why don't I (and you) read most Supreme Court cases? Because contrary to popular belief, the Supreme Court doesn't decide abortion and first speech cases all day. Most of what they do is pretty boring stuff about minimal contacts for personal jurisdiction, the doctrine of equivalents, and the like. Most people are not thrilled to read cases about whether Rule 23 preempts state law in a class action brought in federal court under diversity jurisdiction.

In response to your rude crack about traffic court, I have a commercial litigation practice. I have a number of cited opinions, both state and federal, if you would like citations.

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But just to make sure I'm reading this right, are you really arguing that stare decisis is not the foundational principle of common law?

I never implied anything of the sort. I simply wondered why you threw out the term. I know that Latin sounds impressive, but stare decisis gets talked about during one class session in the first year of law school and that's about it. No one ever cites to it in practice.

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I was under the impression that "gross inequality of bargaining power" was, in and of itself, evidence of unconscionability; I have yet to come across anything that specifies that said "gross inequality of bargaining power" has to be caused by one of the parties. By that reasoning, if a man dying of thirst entered into a contract where he would owe his benefactor half his income for the rest of his life in exchange for a canteen of water, providing full disclosure and no coercion to enter into the contract on behalf of the benefactor, this contract would be upheld in court since the "gross inequality of bargaining power" was not actually caused by this so-called benefactor, he was merely taking advantage of pre-existing conditions that were entirely outside his control.

Perhaps you could point me to the existing case law that would support upholding that contract?

You were under the wrong impression. "Gross inequality of bargaining power" is NOT, in and of itself, evidence of unconscionability. And remember, there are two kinds of unconscionability, so you need to specify that what you meant to say was "procedurally unconscionable".

Allow me to give you a recent real life example. I will ask you to give your legal insight and once you have, I will share with everyone "the rest of the story". (just like Paul Harvey!)

An elderly man has a medical crisis at home, which requires an ambulance. The ambulance rushes him to a nursing home. Once there, his wife and daughter meet with the admissions director and go over a 35-page admissions packet. In the middle of the packet is a one-page agreement saying that signing the papers waives the right to sue the nursing home in court if anything should happen. The man's wive has macular degeneration and cannot read small or regular size print, and she thinks that she must sign the papers for the home to treat him, so she signs the papers. Well, something bad happened soon afterwards and the husband died while in the nursing home's care. The widow wants to sue the nursing home for negligence and wrongful death, but the nursing home responds that she waived the right to sue in court.

What is your analysis of the unconscionability issue, and why?

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No, I'm not describing procedural unconscionablity here, that was in the previous paragraph...please try to keep up. Smiley

Here I'm outlining a constitutional argument that would still be relevant even IF the issue of inequality of bargaining power were addressed (which it hasn't been). Forcing someone to remain in a contract, for their entire life without the possibility of escape, where they are expected to give the fruits of their labor to another without just compensation would amount to involuntary servitude. Forget common law, contract that essentially turns an individual into a slave would not be enforceable under the 13th amendment.

I am keeping up just fine. The problem is yours because you think that inequality of bargaining power is per se evidence of unconscionability. That is simply not the law. As a practical matter, think of your bargaining power compared to FedEx. Every time you have them ship something, you are in contract with them. Is that somehow an unconscionable arrangement?

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You're right, it does, but the scary thing is that you're no better at this than I am and the only time I have to defend my position is when I'm killing time on an internet forum.

The Dunning-Kruger effect allows you to make this comment.

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Exclusive to insurance, eh? Guessing you've never bought a house?

What part of "pretty much" don't you get? What you are talking about would fall under a majority of headings such as exculpatory clauses, impossibility clauses, force majeure, and so on. Like I said, "escape clause" has a definite connotation of insurance coverage.

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Sorry, it's only been the leading legal story in the news for the past year...but I shouldn't have assumed you are familiar with it.

I am familiar with the story. However, I did not read the contracts to the transactions and hence cannot comment on their substance. If you provide me links to them, I could read them. However, it is not my practice to comment on contracts that I have not read.

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Well I was under the impression that it was a clause in a contract that frees a party from the responsibility to execute the contract, does it mean something different at your law firm?

What you describe applies to a large class of clauses, some of which I described above, not just escape clauses. Like I said, it's insurance coverage terminology.

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« Reply #10 on: March 16, 2012, 06:53:54 PM »

Yes, and despite all of our laws being subject to a constitution that made notable breaks feudal English law, we're still have a common law system. Which forces me to ask the question, what exactly do you think common law is?

Do you think that a common law system cannot exist under a constitution?

I believe I argued the contrary, I'm just trying to understand your position when you suggest that statutory law is not compatible with common law.

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You don't get around to reading SCOTUS transcripts/opinions too often, do you? They pretty much spend their time discussing two things: the impact of their decision on future hypothetical cases and past precedent. And I must confess, I can't remember the last time a pro se litigant who was not a member of the Supreme Court Bar argued a case before the Supreme Court (This piece of trivia actually sparked my interest, I was thinking Kolender v. Lawson, but I looked up the court transcript and it appears he argued his case up through the appellate court, but an amicus curiae argued the case before SCOTUS. You don't happen to know the last time this occurred, do you?). But, you're right, I'm sure stare decisis doesn't come up too often in traffic court.

Actually, I don't. I bet you don't, either. I tend to only read the opinions that are in the news or have impact on my practice; a good example of the latter would be the AT&T Mobility v. Concepcion case, which is relevant to this discuss because it touched on unconscionability. I was able to cite it and the subsequent 11th Circuit case of Cruz v. Cingular Wireless, LLC (which followed Concepcion) in a recent case of mine in order to compel arbitration. As a practical matter, the US Supreme Court is very rarely cited in state court practice, and not that much more in federal practice. Intermediate appellate courts are what is cited as authority the great majority of the time, although in federal court, district court decisions are also good authority.

Why don't I (and you) read most Supreme Court cases? Because contrary to popular belief, the Supreme Court doesn't decide abortion and first speech cases all day. Most of what they do is pretty boring stuff about minimal contacts for personal jurisdiction, the doctrine of equivalents, and the like. Most people are not thrilled to read cases about whether Rule 23 preempts state law in a class action brought in federal court under diversity jurisdiction.

In response to your rude crack about traffic court, I have a commercial litigation practice. I have a number of cited opinions, both state and federal, if you would like citations.

Contrary to popular belief, with the exception of landmark cases picked up by the news media, the cases that get the most interest and most attendance tend to be ones that deal with procedural issues, for the simple reason that these tend to be the most useful for lawyers in their day to day practice. Personally, I think some of the most interesting cases to read/listen to are those that deal with admiralty law, unfortunately those don't come up too often (most admiralty law is pretty well settled) and I haven't seen any this term. First amendment cases have become a lot less interesting under the Roberts court simply because it's become a lot easier to predict the outcome, not that I'm complaining, I quite like where the court has gone with first amendment law. Second amendment cases are now the more interesting ones because it's such new territory.

And, no I don't invest myself in a majority of the cases, but I tend to read/listen to somewhere between a quarter and a half of the cases in a term...I usually read the argument previews on scotusblog then go into more depth if I find the case interesting, in any case I usually also read the argument recap and summary of the opinion even if I don't dig any deeper in a case. I also download the audio recordings every Friday and will listen to some of them over the weekend since TV sucks on the weekends.

Also, sometimes the most fun cases surprise you, this term Smith v. Cain was a great oral argument, yeah there was nothing new from a legal standpoint (I really don't even know why they heard the case), it was a straightforward application of Brady, but it's rare to see the Justices tear someone apart like they did to the New Orleans ADA, I think she'll need therapy to get over her first case argued before the court, I believe Kagan even accused her of corruption, or at least covering up corruption, at one point. I read the transcript the afternoon after arguments, but it was so good I downloaded and listened to it again that Friday. If the petitioner's argument wasn't so bad and absurd I would have probably felt sorry for her (as it is, she kinda deserved it). If you haven't listened to it, download it, it won't disappoint.

But whatever the Supreme Court does, it's rarely boring, their criteria for selecting cases ensures that.

On a related note, scotusblog just announced that we're getting same day release of audio recordings for the health care cases!!! Not that I support doing it regularly and I definitely don't support cameras in the Supreme Court, but it's still a bit exciting.

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But just to make sure I'm reading this right, are you really arguing that stare decisis is not the foundational principle of common law?

I never implied anything of the sort. I simply wondered why you threw out the term. I know that Latin sounds impressive, but stare decisis gets talked about during one class session in the first year of law school and that's about it. No one ever cites to it in practice.

Oh, you just don't like the term...

I never went to law school and I can't speak to the preferred jargon amongst lawyers. But in my observation of SCOTUS and of Congressional hearings for judicial appointments it seems that they use the term 'stare decisis' when discussing the concept of stare decisis, but they just speak of 'precedent' when actually applying stare decisis in practice. Since we were talking about the concept of stare decisis and its role in common law, I had assumed that it was the preferred term in that particular context.

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I was under the impression that "gross inequality of bargaining power" was, in and of itself, evidence of unconscionability; I have yet to come across anything that specifies that said "gross inequality of bargaining power" has to be caused by one of the parties. By that reasoning, if a man dying of thirst entered into a contract where he would owe his benefactor half his income for the rest of his life in exchange for a canteen of water, providing full disclosure and no coercion to enter into the contract on behalf of the benefactor, this contract would be upheld in court since the "gross inequality of bargaining power" was not actually caused by this so-called benefactor, he was merely taking advantage of pre-existing conditions that were entirely outside his control.

Perhaps you could point me to the existing case law that would support upholding that contract?

You were under the wrong impression. "Gross inequality of bargaining power" is NOT, in and of itself, evidence of unconscionability. And remember, there are two kinds of unconscionability, so you need to specify that what you meant to say was "procedurally unconscionable".

I thought you had already conceded substantive unconscionablity. Are you flip-flopping or do you just prefer arguments about jargon over substance? There's no jury here, not sure who you're trying to impress.

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Allow me to give you a recent real life example. I will ask you to give your legal insight and once you have, I will share with everyone "the rest of the story". (just like Paul Harvey!)

An elderly man has a medical crisis at home, which requires an ambulance. The ambulance rushes him to a nursing home. Once there, his wife and daughter meet with the admissions director and go over a 35-page admissions packet. In the middle of the packet is a one-page agreement saying that signing the papers waives the right to sue the nursing home in court if anything should happen. The man's wive has macular degeneration and cannot read small or regular size print, and she thinks that she must sign the papers for the home to treat him, so she signs the papers. Well, something bad happened soon afterwards and the husband died while in the nursing home's care. The widow wants to sue the nursing home for negligence and wrongful death, but the nursing home responds that she waived the right to sue in court.

What is your analysis of the unconscionability issue, and why?

What was on that page? Was it something outlandish like a release from all liability including liability resulting from criminal malpractice or was it a simple arbitration agreement? If it's the latter, the case is obvious, especially in light of recent SCOTUS decisions on arbitration (not that I agree with those decisions, I think they're part of a wider trend eroding due process, but it is what it is). If it's not a case about arbitration, I'll need a little more information such as the content of the page in question (or at least all the legally relevant details) and the jurisdiction in which the case was heard.

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No, I'm not describing procedural unconscionablity here, that was in the previous paragraph...please try to keep up. Smiley

Here I'm outlining a constitutional argument that would still be relevant even IF the issue of inequality of bargaining power were addressed (which it hasn't been). Forcing someone to remain in a contract, for their entire life without the possibility of escape, where they are expected to give the fruits of their labor to another without just compensation would amount to involuntary servitude. Forget common law, contract that essentially turns an individual into a slave would not be enforceable under the 13th amendment.

I am keeping up just fine. The problem is yours because you think that inequality of bargaining power is per se evidence of unconscionability. That is simply not the law. As a practical matter, think of your bargaining power compared to FedEx. Every time you have them ship something, you are in contract with them. Is that somehow an unconscionable arrangement?

I could think of a few scenarios in which such a contract could be brought into question, especially taking into account the Postal Clause of the US Constitution, though not purely on the basis of contract law. But it would require FedEx to be a monopoly (in violation of the Sherman Anti-Trust Act) and, therefore, the Post Office not to exist (possibly a violation of Article I...but that's questionable)...given those conditions, I'm sure I could come up with a scenario if I thought about it.

But unlike Fedex, the government has a monopoly on marriage licenses and can make absolute terms that have the potential to deny access to a fundamental human right; Fedex could not possibly have the same power, even if they were a monopoly I still have the option of delivering the package myself, and it's hard to come up with a scenario in which not having your package delivered is a violation of your constitutional or human rights, whereas when being denied access to marriage, it's a much easier argument to make.

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You're right, it does, but the scary thing is that you're no better at this than I am and the only time I have to defend my position is when I'm killing time on an internet forum.

The Dunning-Kruger effect allows you to make this comment.

If it makes you feel better, why not...but it still doesn't give any substance to your arguments. You may or may not be a capable corporate lawyer, I really don't know, but you have yet to demonstrated a solid academic understanding of legal theory. By now this should have evolved into a discussion of Blackstone, Locke, and Adam Smith since that is what would actually help us answer the question "Is marriage law turning into a subset of contract law?'. Instead we're stuck trying to reinvent the wheel by deriving a theory of contract law from recent court cases; I may have read Blackstone and while I'm capable of regurgitating his work I doubt either of us are qualified to duplicate it.

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Exclusive to insurance, eh? Guessing you've never bought a house?

What part of "pretty much" don't you get? What you are talking about would fall under a majority of headings such as exculpatory clauses, impossibility clauses, force majeure, and so on. Like I said, "escape clause" has a definite connotation of insurance coverage.

Oh, I see CJ Rehnquist, we're back to arguing about jargon again. Wink
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« Reply #11 on: March 16, 2012, 08:30:06 PM »

I believe I argued the contrary, I'm just trying to understand your position when you suggest that statutory law is not compatible with common law.

I never said that.

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Oh, you just don't like the term...

I never went to law school and I can't speak to the preferred jargon amongst lawyers. But in my observation of SCOTUS and of Congressional hearings for judicial appointments it seems that they use the term 'stare decisis' when discussing the concept of stare decisis, but they just speak of 'precedent' when actually applying stare decisis in practice. Since we were talking about the concept of stare decisis and its role in common law, I had assumed that it was the preferred term in that particular context.

It has nothing to do with the term and everything to do with that everyone playing the game already know that rule, so there is no need to even mention it. No one ever says in a brief or at a hearing, "Judge, stare decisis says you have to do blah blah blah!" It would just be too comical. The judges know which opinions are binding authority and which ones are not, and so do the lawyers, so no one ever mentions it. Blurting out about stare decisis pretty much come off like the discussion of mens rea in Legally Blonde:

http://www.youtube.com/watch?v=zRcbH_DFgPM&t=2m13s

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I thought you had already conceded substantive unconscionablity. Are you flip-flopping or do you just prefer arguments about jargon over substance? There's no jury here, not sure who you're trying to impress.

I conceded nothing. I am simply correcting your incorrect idea that inequality of bargaining power is per se evidence of unconscionability.

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What was on that page? Was it something outlandish like a release from all liability including liability resulting from criminal malpractice or was it a simple arbitration agreement? If it's the latter, the case is obvious, especially in light of recent SCOTUS decisions on arbitration (not that I agree with those decisions, I think they're part of a wider trend eroding due process, but it is what it is). If it's not a case about arbitration, I'll need a little more information such as the content of the page in question (or at least all the legally relevant details) and the jurisdiction in which the case was heard.

You don't need to know what was on the page because the issue is procedural unconscionability. Thus, I gave you all of the legally relevant details.

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I could think of a few scenarios in which such a contract could be brought into question, especially taking into account the Postal Clause of the US Constitution, though not purely on the basis of contract law. But it would require FedEx to be a monopoly (in violation of the Sherman Anti-Trust Act) and, therefore, the Post Office not to exist (possibly a violation of Article I...but that's questionable)...given those conditions, I'm sure I could come up with a scenario if I thought about it.

None of that is irrelevant to the inequality of bargaining power. I was simply giving you a real life example to illustrate to you that monumental differences in bargaining power is not, in and of itself, evidence of unconscionability. Shipping by FedEx, entering a sports stadium, or riding an airplane are all areas subject to a contract where one party

Nice cite to Sherman. Most people learn about that in high school history class.

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But unlike Fedex, the government has a monopoly on marriage licenses and can make absolute terms that have the potential to deny access to a fundamental human right; Fedex could not possibly have the same power, even if they were a monopoly I still have the option of delivering the package myself, and it's hard to come up with a scenario in which not having your package delivered is a violation of your constitutional or human rights, whereas when being denied access to marriage, it's a much easier argument to make.

The government does not have a monopoly on marriage licenses. An American can be married in any one of fifty states, plus the District of Columbia and U.S. territories. If the market place offered over 50 choices for any service, even the staunched libertarian would cheer at the diversity. Of course, this has nothing to do with the unconscionability issue; I simply felt the urge to further educate you.


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If it makes you feel better, why not...but it still doesn't give any substance to your arguments. You may or may not be a capable corporate lawyer, I really don't know, but you have yet to demonstrated a solid academic understanding of legal theory. By now this should have evolved into a discussion of Blackstone, Locke, and Adam Smith since that is what would actually help us answer the question "Is marriage law turning into a subset of contract law?'. Instead we're stuck trying to reinvent the wheel by deriving a theory of contract law from recent court cases; I may have read Blackstone and while I'm capable of regurgitating his work I doubt either of us are qualified to duplicate it.

The Dunning-Kruger effect means that you cannot recognize that you are unable to judge what is correct legal argument. I know it feels very sophisticated to cite to Blackstone and Adam Smith, but the fact is that the practice of law has nothing to do with that sort of academic mental masturbation. That simply isn't how it is done. The judge will tell you that they are not there to comment on Locke, and then ask you what your point is. The fact is that if you're citing to Blackstone and the like, that means your position is a loser because you cannot find a shred of actual binding authority for your position. Who cares what Hobbes said? Philosophical treatises are not legal authorities. Their entry would be the devolution, not evolution, of this discussion.

Seriously, it's like you think that scene in Good Willing Hunter where he argues a motion to dismiss based on Ward's "Proverbs From Plymouth Pulpit" was a documentary shot in real time.

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Oh, I see CJ Rehnquist, we're back to arguing about jargon again. Wink

Actually, it is not just jargon. Real law, not Googling-in-my-spare-time law, requires precision of words.

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« Reply #12 on: March 22, 2012, 02:19:56 AM »

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Oh, you just don't like the term...

I never went to law school and I can't speak to the preferred jargon amongst lawyers. But in my observation of SCOTUS and of Congressional hearings for judicial appointments it seems that they use the term 'stare decisis' when discussing the concept of stare decisis, but they just speak of 'precedent' when actually applying stare decisis in practice. Since we were talking about the concept of stare decisis and its role in common law, I had assumed that it was the preferred term in that particular context.

It has nothing to do with the term and everything to do with that everyone playing the game already know that rule, so there is no need to even mention it. No one ever says in a brief or at a hearing, "Judge, stare decisis says you have to do blah blah blah!" It would just be too comical. The judges know which opinions are binding authority and which ones are not, and so do the lawyers, so no one ever mentions it. Blurting out about stare decisis pretty much come off like the discussion of mens rea in Legally Blonde:

http://www.youtube.com/watch?v=zRcbH_DFgPM&t=2m13s

No one cares what happens in the court room, unless it's the Supreme Court or a federal appellate court it's largely irrelevant to the academic discipline of law. We're talking about the theory of contract of law across several jurisdictions, transcending details of implementation in common and civil law systems in dozens of nations, and comparing it to marriage law in the respective jurisdictions. And considering that this is a change that has only started to enter into the laws of these several jurisdictions over the last 200 years, I would think discussion about how such universal precedent is established would be more useful than a debate over what language people at the local court house prefer to use when referencing established precedent.

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I thought you had already conceded substantive unconscionablity. Are you flip-flopping or do you just prefer arguments about jargon over substance? There's no jury here, not sure who you're trying to impress.

I conceded nothing. I am simply correcting your incorrect idea that inequality of bargaining power is per se evidence of unconscionability.

Once you've already established substantive unconscionablity, which I have...yes, it does. So, speaking of things you should have learned in the first year of law school, why don't you go back and re-read Williams v. Walker-Thomas Furniture? At least, I'm assuming someone made you read it at some point.

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What was on that page? Was it something outlandish like a release from all liability including liability resulting from criminal malpractice or was it a simple arbitration agreement? If it's the latter, the case is obvious, especially in light of recent SCOTUS decisions on arbitration (not that I agree with those decisions, I think they're part of a wider trend eroding due process, but it is what it is). If it's not a case about arbitration, I'll need a little more information such as the content of the page in question (or at least all the legally relevant details) and the jurisdiction in which the case was heard.

You don't need to know what was on the page because the issue is procedural unconscionability. Thus, I gave you all of the legally relevant details.

LMAO...I was right, it was an arbitration clause. Convenient piece of information to leave out. But, please, tell me, what is so unconscionable about an arbitration clause? That and why was an ambulance rushing someone to the nursing home? If it was that big of an emergency, why didn't they take him to the ER? Wink

And really man? less than a month after Marmet Health Care Center v. Brown? After I told you I follow the court? Come on, you've got to be better than that. And on top of all that, the issue in these cases had nothing to do with contract law, they were cases about the Supremacy Clause, which is COMPLETELY IRRELEVANT to our discussion! But at least we're having fun. Wink

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I could think of a few scenarios in which such a contract could be brought into question, especially taking into account the Postal Clause of the US Constitution, though not purely on the basis of contract law. But it would require FedEx to be a monopoly (in violation of the Sherman Anti-Trust Act) and, therefore, the Post Office not to exist (possibly a violation of Article I...but that's questionable)...given those conditions, I'm sure I could come up with a scenario if I thought about it.

None of that is irrelevant to the inequality of bargaining power. I was simply giving you a real life example to illustrate to you that monumental differences in bargaining power is not, in and of itself, evidence of unconscionability. Shipping by FedEx, entering a sports stadium, or riding an airplane are all areas subject to a contract where one party

Nice cite to Sherman. Most people learn about that in high school history class.

I would hope so...at the very latest.

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But unlike Fedex, the government has a monopoly on marriage licenses and can make absolute terms that have the potential to deny access to a fundamental human right; Fedex could not possibly have the same power, even if they were a monopoly I still have the option of delivering the package myself, and it's hard to come up with a scenario in which not having your package delivered is a violation of your constitutional or human rights, whereas when being denied access to marriage, it's a much easier argument to make.

The government does not have a monopoly on marriage licenses. An American can be married in any one of fifty states, plus the District of Columbia and U.S. territories. If the market place offered over 50 choices for any service, even the staunched libertarian would cheer at the diversity. Of course, this has nothing to do with the unconscionability issue; I simply felt the urge to further educate you.

That's what they're trying to argue in Pedersen v. OPM and Gill v. OPM, but Uncle Sam seems to disagree with you. If we get lucky, the Supreme Court will take the cases and we'll see who's right, you and GLAD or the United States congress. But don't you think it's just a little soon to be calling the case? Some of the Justices are getting pretty old, they might not even be on the court when (if) it hears the case. But good luck, I'm rooting for you on this one. Grin

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If it makes you feel better, why not...but it still doesn't give any substance to your arguments. You may or may not be a capable corporate lawyer, I really don't know, but you have yet to demonstrated a solid academic understanding of legal theory. By now this should have evolved into a discussion of Blackstone, Locke, and Adam Smith since that is what would actually help us answer the question "Is marriage law turning into a subset of contract law?'. Instead we're stuck trying to reinvent the wheel by deriving a theory of contract law from recent court cases; I may have read Blackstone and while I'm capable of regurgitating his work I doubt either of us are qualified to duplicate it.

The Dunning-Kruger effect means that you cannot recognize that you are unable to judge what is correct legal argument. I know it feels very sophisticated to cite to Blackstone and Adam Smith, but the fact is that the practice of law has nothing to do with that sort of academic mental masturbation. That simply isn't how it is done. The judge will tell you that they are not there to comment on Locke, and then ask you what your point is. The fact is that if you're citing to Blackstone and the like, that means your position is a loser because you cannot find a shred of actual binding authority for your position. Who cares what Hobbes said? Philosophical treatises are not legal authorities. Their entry would be the devolution, not evolution, of this discussion.

Seriously, it's like you think that scene in Good Willing Hunter where he argues a motion to dismiss based on Ward's "Proverbs From Plymouth Pulpit" was a documentary shot in real time.

Yes, actually, that is how academic law is done. Which is the only relevant practice of law for this discussion.

To bring this back to where this all started, we're discussing how (or whether, if you prefer) inheritance law, and marriage law with it, became little more than a branch of contract law. I had argued that the rise of the merchant classes and relative decline of the aristocracy had undermined the motivation behind primogeniture, initiating a movement of inheritance law towards contract law when wills of personality became more important than wills of land and with the abolition of knight-service tenure. With inheritance and succession largely decoupled from the institution of marriage, its traditional purpose was undermined and it began to slowly evolve from a business agreement to a partnership, albeit an unequal one. This, along with the several other benefits brought by the rise of the merchant classes, slowly lead to the empowerment of women in society, including the right of a married women to enter into a contract and the related decline of the idea that marriage unified two people into a single person (namely, the husband...which had largely been the reasoning behind now allowing married women to enter into a contract). Once marriage turned into a (relatively) equal partnership, with each party being able to acquire and dispense property independently and of their own accord, the primary focus of marriage law began to change form matters of inheritance and succession to the distribution of property within, and after, a marriage. This naturally lead to the modern prenuptial agreement in order to give the parties entering into a marriage some degree of control over the economic parameters of their agreement. Most recently it has lead to the acceptance of divorce, with the understanding that the state has no compelling interest to force two independent parties to maintain a marriage agreement that neither desires (and as a bonus, it helped cut back on perjury...it seems that society accepted the concept of no-fault divorce well before the state did). So, today, marriage primarily regulates economic matters, the terms of which can be set by the parties involved, and they can, almost at will, enter into or dissolve this agreement by mutual consent; furthermore, that which is not property (such as children) is beyond the scope of a marriage and cannot be governed by a marriage agreement, rather it must be settled at the discretion of the state. This modern marriage bears far more resemblance to an economic contract than to the institution known to medieval Europe and the ancient world.

Now what exactly was your point?
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« Reply #13 on: March 22, 2012, 11:19:39 PM »

No one cares what happens in the court room, unless it's the Supreme Court or a federal appellate court it's largely irrelevant to the academic discipline of law. We're talking about the theory of contract of law across several jurisdictions, transcending details of implementation in common and civil law systems in dozens of nations, and comparing it to marriage law in the respective jurisdictions. And considering that this is a change that has only started to enter into the laws of these several jurisdictions over the last 200 years, I would think discussion about how such universal precedent is established would be more useful than a debate over what language people at the local court house prefer to use when referencing established precedent.

The litigants care very much. And, I hate to burst your bubble, but no one really cares about the "academic discipline of law". What courts care about is the application of law. As the U.S. Supreme Court remarked in North Dakota State Bd. of Pharmacy v. Snyder's Drug Stores, Inc., 414 U.S. 156 (1973), "Whether the legislature takes for its textbook Adam Smith, Herbert Spencer, Lord Keynes, or some other is no concern of ours." As it happens, the U.S. Supreme Court has a whopping 25 opinions in all of history that contain the string "Adam Smith", and not even all are references to the author of The Wealth of Nations; sometimes it is a party's name. People don't get riled up about high profile cases before the Supreme Court because they care about "academic discipline"; they care about how the application of the law will affect them.

Although, evenif what you say about "academic discipline were true, I have to correct your statement. The Supreme Court and federal appellate courts have nothing to say, for example, about the academic discipline of law when it comes to many matters such as unconscionability in contract. The reason is because there is no federal common law for contract. A federal court interpreting a contract will apply the governing state law. The Erie case tells us that this will be the case in most matters (although it is an exaggeration to say that there is no federal common law). If you had ever seen the inside of a law school, you would know that most of the cases in a contract textbook are state law cases. Again, the reason is because there is no common law of contract.

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Once you've already established substantive unconscionablity, which I have...yes, it does. So, speaking of things you should have learned in the first year of law school, why don't you go back and re-read Williams v. Walker-Thomas Furniture? At least, I'm assuming someone made you read it at some point.

No, it doesn't. I do not know why you keep harping on Williams, since it is only binding in the District of Columbia. For a U.S. Supreme Court case on why unequal bargaining power is not per se procedural unconscionability, you may wish to review  Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 32-33 (1991) (allowing arbitration of claims arising under the Age Discrimination in Employment Act of 1967 despite allegations of unequal bargaining power between employers and employees). For a more recent discussion, you may wish to review last year's AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011) (applying California law and allowing class action waiver in consumer contract despite alleged inequality in bargaining power). It is true that inequality of bargaining power can be probative evidence of procedural unconscionability, but it is not conclusive evidence.

As it happens, I currently am handling an appeal on the issue of unconscionability. I will be happy to provide a citation to that opinion once the appellate court issues the opinion. I would expect it by this time next year.

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LMAO...I was right, it was an arbitration clause. Convenient piece of information to leave out. But, please, tell me, what is so unconscionable about an arbitration clause? That and why was an ambulance rushing someone to the nursing home? If it was that big of an emergency, why didn't they take him to the ER? Wink

Why was it a convenient piece of information to leave out? The content of the contract is irrelevant to the issue. So, was the scenario I provided procedurally unconscionable or not?

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And really man? less than a month after Marmet Health Care Center v. Brown? After I told you I follow the court? Come on, you've got to be better than that. And on top of all that, the issue in these cases had nothing to do with contract law, they were cases about the Supremacy Clause, which is COMPLETELY IRRELEVANT to our discussion! But at least we're having fun. Wink

I do not know why you mentioned Marmet, other than to mention it.

I am not having fun. It is annoying to encounter an arrogant Googler. Look, I have been doing this every day for years, not in my spare time to sound smart at parties. If I am wrong, I can be disciplined by the bar, sued in malpractice, or at least fired by the client. If you are wrong, you can pretend that you aren't and rattle off about John Locke. Thanks to my intellectual prowess, I don't get it wrong, which is why megacorps pay me megabucks to handle their contract matters at the trial and appellate level. Who entrusts their contract matters to you?

If you were discussing some point of, say, real property law or criminal law, I would not have as much as an advantage over you because those are not my practice areas. However, I have a 100% commercial practice and have particular expertise in the law of unconscionability because of my work in defending consumer claims. You simply picked the wrong person to have this discussion with.

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That's what they're trying to argue in Pedersen v. OPM and Gill v. OPM, but Uncle Sam seems to disagree with you. If we get lucky, the Supreme Court will take the cases and we'll see who's right, you and GLAD or the United States congress. But don't you think it's just a little soon to be calling the case? Some of the Justices are getting pretty old, they might not even be on the court when (if) it hears the case. But good luck, I'm rooting for you on this one. Grin

How does "Uncle Sam" disagree with me?

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Yes, actually, that is how academic law is done. Which is the only relevant practice of law for this discussion.

There isn't any such thing as the academic practice of law. Professors do not practice. It may surprise you to know that some law school professors, at very prestigious law schools, do not even have law licenses. And no,

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To bring this back to where this all started, we're discussing how (or whether, if you prefer) inheritance law, and marriage law with it, became little more than a branch of contract law. I had argued that the rise of the merchant classes and relative decline of the aristocracy had undermined the motivation behind primogeniture, initiating a movement of inheritance law towards contract law when wills of personality became more important than wills of land and with the abolition of knight-service tenure. With inheritance and succession largely decoupled from the institution of marriage, its traditional purpose was undermined and it began to slowly evolve from a business agreement to a partnership, albeit an unequal one. This, along with the several other benefits brought by the rise of the merchant classes, slowly lead to the empowerment of women in society, including the right of a married women to enter into a contract and the related decline of the idea that marriage unified two people into a single person (namely, the husband...which had largely been the reasoning behind now allowing married women to enter into a contract). Once marriage turned into a (relatively) equal partnership, with each party being able to acquire and dispense property independently and of their own accord, the primary focus of marriage law began to change form matters of inheritance and succession to the distribution of property within, and after, a marriage. This naturally lead to the modern prenuptial agreement in order to give the parties entering into a marriage some degree of control over the economic parameters of their agreement. Most recently it has lead to the acceptance of divorce, with the understanding that the state has no compelling interest to force two independent parties to maintain a marriage agreement that neither desires (and as a bonus, it helped cut back on perjury...it seems that society accepted the concept of no-fault divorce well before the state did). So, today, marriage primarily regulates economic matters, the terms of which can be set by the parties involved, and they can, almost at will, enter into or dissolve this agreement by mutual consent; furthermore, that which is not property (such as children) is beyond the scope of a marriage and cannot be governed by a marriage agreement, rather it must be settled at the discretion of the state. This modern marriage bears far more resemblance to an economic contract than to the institution known to medieval Europe and the ancient world.

That is nice, but your original point was that marriages were voidable because they were unconscionable. You have not supported that opinion with any legal authority.

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Now what exactly was your point?

My point was that you were talking out of an orifice commonly known as the "tooter". I do not know your trade, but I would not presume to tell you how it is done. I do not know why you do not do the same.

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« Reply #14 on: March 22, 2012, 11:58:48 PM »

Why does legitimacy matter?  Are we back in the middle ages?
What is wrong with the Middle Ages? Aren't moral values supposed to pass on unchanged from one generation to the next? Take for example the sin of idolatry or worship of strange gods. It was wrong then and it is wrong now.

I don't see Nektarios talking about 'morality' per se. He's asking about the question of legitimacy as applied to the children--who aren't guilty of anything whether the parents were married or not. He's asking why we should care whether or not children are legitimate (as opposed to the Middle Ages where there were definite legal as well as social issues around being a 'bastard'). I'm not sure if I agree with him, but the question itself is totally separate from the morality of the parents.

Exactly.  Illegitimacy is a legal concept that was primarily used in the middle ages.  It was important because it had the potential to exclude inheritance rights.  So getting back to my question, why on earth does it matter if a person is "legitimate" or "illegitimate"? 

Yes, the transition from ancient inheritance laws to modern contract law has rendered the issue of legitimacy irrelevant. But with that, it has also rendered the institution of marriage obsolete...they're both equally absurd in a modern context. So if we're going to argue about something as outdated as marriage, why not throw in discussions about ancient inheritance laws, the legitimacy of children, spiritual degrees of separation, etc.? You know, things that were relevant back when marriage was actually relevant.
In the West, marriage was always in the sphere of contract law, before Constantine's conversion and after.  As long as the law presumes that the husband is the father of his wife's children (and that is the presumption, even if proven otherwise by paternity test), and other things in the bundle of the marriage contract, it's not irrelevant.  What has made marriage "irrelevant" is divorce law, in which case less and less men are willing to risk getting snared into the jurisdiction of a family court (not always possible, given the latitude given false accusations of paternity).
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« Reply #15 on: March 23, 2012, 01:02:33 AM »

GiC, I think that analysis is uncharacteristically faulty.

If marriage is a contract, (1) why are the "terms" of the contract prescribed; and (2) why can the contract not be amended or undone by a subsequent contract? Closely related to (2), why, in so many common law jurisdictions, are pre-nuptial agreements of no force?

If only marriage really were contractual! Perhaps then our courts would properly enforce the terms of such a noble agreement.

You don't mean 'so many common law jurisdictions', you mean the United Kingdom, right? Because they work just fine in the US, Canada, South Africa, and Australia. But, yes, in the UK they have very limited force (though the Law Commission is currently considering the issue and this is likely to change later this year); but as a country that still maintains their Landed Nobles and even preserves their birthright to sit in the Upper House of Parliament, they tend to change far more slowly than most countries, be they common or civil law nations. And marriage is certainly still changing, but the change to understanding it as a contract is pretty much established in the statutory law of most western nations.
Most pre-nuptial agreements, like most divorce settlements, are hardly worth the paper they are on.

In the US, they have to be based on statutory law: Meister v. Moore 96 U.S. 76 (1877) dictates that statutes must specifically bar recognition of the common law of marriage, including common law marriage.

Other than that, the only major exception is in the matter of custody of children. But children are not property and parents cannot deal with them as though they were property in contracts; since they are Citizens, the state, not the parent, has authority over the children and it is the right of the state to decide who can act as an instrument of their authority.
Your totalitarianism is showing.

No, the children are not the property of the state, citizenship or not (btw, you are aware that you do not need to be a citizen to either be married, have children (either the normal way or adoption) or divorce in the US, no?).  What the state uses as its excuse in the case of divorce is the invoking of its jurisdiction to grant the divorce.  Troxel v. Granville, 530 U.S. 57 (2000) affirmed that "the interest of parents in the care, custody and control of their children--is perhaps the oldest of the fundamental liberty interests recognized by this Court.' "Recognized," not "granted."

The states continue, however, to try to nibble at that fundamental right and excuse their intrusion.  And, as far as the practice of the law is concerned, that children are not property is a legal fiction.

But this is the same in any other case of contract law, Google and Intel can't sign a contract that forces IBM to merge with one of them, they could merge themselves (anti-trust law aside), but they can't make their agreement binding on a third party.
But if Google breaks its contract with Intel, it can be sued.  Not so with marriage in the US today.

And yes, their agreement in a pre-nuptial/divorce settlement can be made binding on third parties, at least on paper.

Beyond that, the restrictions on annulments are the same as for any other contract: they have to be voluntary, full disclosure is required, it's very strongly recommended (though not always required) that they be in writing, they can't be unconscionable, etc. Pre-nuptial agreements do tend to be easier to overturn in court than say a corporate contract, but that's because private citizens, on average, are not as good at drawing up contracts as corporate lawyers.
So say corporate lawyers. LOL.  They are about as good as divorce lawyers, i.e. not very, and none so good that a better (usually more expensive lawyer) can't give it a good shot at overturning them.  And if you are the wife, you don't even need a good lawyer.

Oh, and yes, marriage contracts can be 'amended or undone by a subsequent contract', divorce being the most obvious example, but there are also post-nuptial agreements (though it is a lot harder to prove voluntariness in these), they can also be modified by a will, or even a business contract (e.g. the sale of property obviously means that your spouse won't inherit it). Yes, most jurisdictions have a  statutory default contract for matrimonial regimes that will apply if no additional steps are taken, but the defaults can be heavily modified by a pre-nuptial agreement.
The statutes either recognize what the common law held of the marriage contract, or modify it.  The common law terms of marriage are/were so well known that they don't seem to be a contract.  Hence Charles Dickens reference to the terms of the marriage contract in common law:
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"Nothing," replied Mr. Brownlow, "except that it remains for us to take care that neither of you is employed in a situation of trust again. You may leave the room."

"I hope," said Mr. Bumble, looking about him with great ruefulness, as Mr. Grimwig disappeared with the two old women: I hope that this unfortunate little circumstance will not deprive me of my porochial office?"

"Indeed it will," replied Mr. Brownlow. "You may make up your mind to that, and think yourself well off besides."

"It was all Mrs. Bumble. She (r)would¯ do it," urged Mr. Bumble; first looking round to ascertain that his partner had left the room.

"That is no excuse," replied Mr. Brownlow. "You were present on the occasion of the destruction of these trinkets, and indeed are the more guilty of the two, in the eye of the law; for the law supposes that your wife acts under your direction."

"If the law supposes that," said Mr. Bumble, squeezing his hat emphatically in both hands, "the law is a ass- a idiot. If that's the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience- by experience."
http://www.online-literature.com/dickens/olivertwist/52/
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« Reply #16 on: March 23, 2012, 01:02:34 AM »

You don't mean 'so many common law jurisdictions', you mean the United Kingdom, right? Because they work just fine in the US, Canada, South Africa, and Australia. But, yes, in the UK they have very limited force (though the Law Commission is currently considering the issue and this is likely to change later this year); but as a country that still maintains their Landed Nobles and even preserves their birthright to sit in the Upper House of Parliament, they tend to change far more slowly than most countries, be they common or civil law nations. And marriage is certainly still changing, but the change to understanding it as a contract is pretty much established in the statutory law of most western nations.

Contract is, itself, a creature of the common law. Australian "financial agreements", at least, depend entirely upon statute for their limited force. The position at common law remains that parties to a marriage cannot oust the jurisdiction of the court by private agreement. I would be surprised to learn this is not the case in Canada and South Africa, &c.
It's not the case in the US (I can say that with certainty in IL, I don't recall specific opinions elsewhere on this specific issue, but IL common law, reflected in the Illinois Marriage and Dissolution of Marriage Act (IMDMA), holds that the state is an interested third party in all marriages.  Divorce, IL law recognizes, is entirely statutory in construction, whereas marriage is not (e.g. although IL does not recognize common law marriage, it recognizes them from jurisdictions which have not abolished them by specific statute abolishing them (something SCOTUS has required).  Originally the courts had jurisdiction over marriages, but not divorce (which had to gotten from the legislature).

Other than that, the only major exception is in the matter of custody of children. But children are not property and parents cannot deal with them as though they were property in contracts; since they are Citizens, the state, not the parent, has authority over the children and it is the right of the state to decide who can act as an instrument of their authority.

I think this analysis is mostly correct, though tends to go beyond the common law conception of the Crown as parens patriae
Yes, SCOTUS has recognized this, going so far as to call "parens patriae" of murky origins, in the procedure of a "kangaroo court." (I don't know if that is an Americanism.  It means a farce of a court.

Beyond that, the restrictions on annulments are the same as for any other contract: they have to be voluntary, full disclosure is required, it's very strongly recommended (though not always required) that they be in writing, they can't be unconscionable, etc.

This analysis only pertains to defects in contract-formation, not dissolution for reasons other than the contract being void from the outset, eg: frustration, repudiation, termination for cause, discharge by agreement. In any case, marriages are frequently held void for reasons other than the usual reasons contracts are held void from the outset -- eg: you can't marry your father, though you could if marriage were a contract.
Which is why not even pagan Rome was able to reduce marriage to just a contract.

Oh, and yes, marriage contracts can be 'amended or undone by a subsequent contract', divorce being the most obvious example, but there are also post-nuptial agreements (though it is a lot harder to prove voluntariness in these),

Divorce is not an example of the undoing of a contract by consent, as divorce can be applied against an unwilling party who wishes for the contract to be enforced.
such "enlightened" ideas.  LOL.

they can also be modified by a will, or even a business contract (e.g. the sale of property obviously means that your spouse won't inherit it).

This is misleading, as you are confusing the modification of the subject matter of the contract with the contract itself.

Yes, most jurisdictions have a  statutory default contract for matrimonial regimes that will apply if no additional steps are taken, but the defaults can be heavily modified by a pre-nuptial agreement.

This seems to be a fair statement, though I still think your characterisation of the common law of marriage and divorce as a "statutory default contract" is incorrect.

I am no legal genius, so I could be wrong about much of the above. Unfortunately, I think your view of the law is gathering strength.
and we are all worse off for it.
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« Reply #17 on: March 23, 2012, 01:02:34 AM »

Yes, a marriage contract is easier to dissolve than many other contracts, but it's a necessity derived from contract law itself. Over the last century we have started to realize that length of the contract 'till death do us part' combined with the intimate nature of the contract is inherently unconscionable, so without a clause that allows it to be dissolved unilaterally any marriage would be null and void from the outset due to unconscionably. Unilateral divorce without fault is a  consequence of marriage falling under contract law, not evidence of divergence.
Utter crap.

No idea of "till death do us part" being inherently unconscionable played any role in the decline of the marital status in the law.  No case law, no statute nor any legislative history refers to such an idea in its dismantling of traditional marriage.  I don't know how such an idea wouldn't be barred by the prohibition on collusion for divorce. 

Unilateral divorce without fault is a consequence of lazy lawyers hungry for business.  Nothing more.

Can you cite any case law or statue of the US which would allow a clause for unilateral dissolution?

they can also be modified by a will, or even a business contract (e.g. the sale of property obviously means that your spouse won't inherit it).

This is misleading, as you are confusing the modification of the subject matter of the contract with the contract itself.

The primary purpose of marriage in the eyes of the state is for matters of property distribution and inheritance; in fact, this is the only reason the state is even allowed to be involved in marriage in the United States, if it was involved for religious or cultural reasons the act of granting a marriage license would likely be a violation of the establishment clause (I'm not sure marriage licenses aren't in violation of the establishment clause anyway, but at least the economic implications give the state a viable argument for being allowed to issue them). So since the distribution of property is the sole legitimate use of civil marriage, any change in the manner in which property is distributed is a de facto change to the contract itself.
Wrong yet again.  The case law on divorce is replete with the pieties of the dependence of the state on marriage to raise proper citizens that state cannot do, blah, blah, blah.  No, its not a violation of the establishment clause: SCOTUS has upheld the ban on polygamy, for instance.

I was just talking with a friend of mine, a former law maker (though he preferred to think of himself as a "law giver"), that the rise of reverse mortgages will relieve yuppies of any reason to have children which they aren't raising (the nanny is) anyways.

Property might be the only thing the courts enforce, but is far from the only thing they stick their noses in.

Yes, most jurisdictions have a  statutory default contract for matrimonial regimes that will apply if no additional steps are taken, but the defaults can be heavily modified by a pre-nuptial agreement.

This seems to be a fair statement, though I still think your characterisation of the common law of marriage and divorce as a "statutory default contract" is incorrect.

I am no legal genius, so I could be wrong about much of the above. Unfortunately, I think your view of the law is gathering strength.

It is gathering strength, it has been ever since Locke, but as we can see with continuing arguments about the nature around the world and especially in the United States over the last few years, we still have a little ways to go. We're in the middle of the transition from common law marriage to contract law marriage, with some countries further along than others, but most the western world, both common and civil law jurisdictions alike, have settled on the contract law approach and full implementation seems almost inevitable at this point.
Nothing is inevitable.

In your scenario, as marriage becomes reduced more to just a contract, less people are signing on.  Which would seem to please your world view, which however doesn't deal with what happens when no future generation is being raised.  Societies tend to die that way.
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« Reply #18 on: March 23, 2012, 01:32:36 AM »

Yes, it is a departure from traditional common law that evolved in the context of a feudal system and is almost always statutory, but legislative bodies do have the authority to change common law through statue and that's exactly what has happened in common law countries around the world with regard to marriage and it looks like the UK is the next country to be taking these steps; however, since the UK still maintains a feudal system of nobles it is far more difficult for them to change these laws since they have to take the inheritance of peerages (that include a seat in the House of Lords) into account, they will most likely end up with two sets of marriage laws, one to govern hereditary peers according to the common law tradition and another law based on contracts for everyone else which might be necessary to prevent the buying and selling of peerages. This is a real legal concern, but one unique to the United Kingdom.

As a lawyer, I was surprised to learn this! I think it is more accurate to say that the legislature can abrogate the common law, but not change it. Of course, statutory law has its own penumbra of common low, but I digress.

That statement would probably be more accurate in several common law countries, such as the United Kingdom, but in the United States where common law is subservient to constitutional law, it can and has been changed and then that change incorporated into our common law tradition through the Supreme Court using the traditions of common law, such as stare decisis.
US Constitutional law presupposes the common law.  49 states (Louisiana doesn't have common law.  I'm not sure how they reconcile that), both in their legislatures and their courts, and the US Congress, can change the common law.  Only SCOTUS can in the Federal Courts: the lower Federal Courts are bound by the common law as interpreted by the state(s) in their jurisdiction.  The common law, however, is enacted by a reception statute, a reception clause in the state constitution, or by court opinion.

That's not entirely different from British Law, which has an uncodified constitution.  Treaties, for instance, are just as binding and supreme as the US constitution itself.  So says the US constitution (the "Supremacy Clause").

Different types of contracts have different requirements, but most of them fall under the single issue of unconscionability. Of course, what is unconscionable is going to depend on the content of the contract and it will be a matter for the courts to decide. What is unconscionable in a marriage contract is not necessarily going to be the same as what's considered unconscionable in a corporate contract...it will overlap, but not be exactly the same.

Except there are two different types of unconscionably: procedural and substantive. A party will only get relief from a contract when it is both procedurally and substantively unconscionable. It's pretty damn hard.

"I knew I wanted to be married for the next couple years, but due to state law I was not given that option and was forced to either enter into a life long agreement or would be allowed no agreement at all." There you have it, procedural unconscionability; admittedly due to the actions of the state rather than the actions of the other party, but this powerlessness over the length of the agreement inherently places a party at a disadvantage during the initial negotiations and inevitably leads to inequality of bargaining power. The persons entering into the marriage are powerless to affect the terms about its duration, the only alternative is to not marry, an unacceptable alternative since marriage is considered a fundamental human right. But this issue won't come up since the state requires these contracts to have an escape clause, namely divorce.
No, divorce existed before the invention of no-fault divorce.  And even with the latter, collusion, condonation, etc. have to be ruled out, even if it is just lip service, and "irreconcilable differences," living separate and apart etc. have to alleged, no matter what the facts.  I almost had a heart attack when my lawyer told me that if the court dismissed the case, I'd be married again, even after it had ordered the dissolution years before.

Now, if you allowed a couple more liberty in setting their terms (say, requiring a renewal of the contract every 2-5 years) you might get around the procedural unconscionability. But I would still argue that a lifelong marriage contract that could not be unilaterally dissolved would run afoul of the 13th Amendment because the distribution of property within a marriage; now this is an argument specific to the United States, but I suspect that most western countries would invalidate a contract that resulted in involuntary servitude.
You could argue it, but lots of luck.  Both parties' property (with certain defined exceptions, the presumption being all property is marital property) belongs to the marriage, not to themselves.  No "servitude" involved, as long as the marriage was entered freely.

Yes, a marriage contract is easier to dissolve than many other contracts, but it's a necessity derived from contract law itself. Over the last century we have started to realize that length of the contract 'till death do us part' combined with the intimate nature of the contract is inherently unconscionable, so without a clause that allows it to be dissolved unilaterally any marriage would be null and void from the outset due to unconscionably. Unilateral divorce without fault is a  consequence of marriage falling under contract law, not evidence of divergence.

But at best, only substantively unconscionable. How is it procedurally unconscionable? The only example I can think of is when Dwight tricked Angela into marrying him on "The Office" a few years ago.

Then you're not trying very hard...see above. Wink
read the law.  It doesn't share your fantasies (those it has quite a few of its own).

A contract that allows either party to defect unilaterally is an illusory contract i.e. not a contract at all.

This is why civil marriage is not a contract. It is a license granted by the state.

Really? You can't find an example of the use of escape clauses outside marriage law? Come one, you said you're a lawyer, you should be able to come up with one or two. Wink

I'm not a lawyer, I just do this stuff as a hobby, but I'm pretty sure the contract between AT&T and T-Mobile behind AT&T's recent failed attempt to acquire the same had escape clauses for both parties, I know AT&T had the option and I believe I recall T-Mobile having that option as well. Yes, there were serious consequences for invoking the escape clauses (in the end, it wasn't an issue, they both wanted the deal to go through, it's just that Uncle Sam had some reservations), but there are also consequences for a divorce in matters of custody and property distribution.

The courts have long rejected the idea that the presence of an escape clause implies that a contract is illusory.
Can you cite something?
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« Reply #19 on: March 23, 2012, 02:40:26 AM »

That statement would probably be more accurate in several common law countries, such as the United Kingdom, but in the United States where common law is subservient to constitutional law, it can and has been changed and then that change incorporated into our common law tradition through the Supreme Court using the traditions of common law, such as stare decisis.

In the US, every law is subservient to the Constitution. That, in fact, is the purpose of a constitution.

Like I said, the legislature does not change common low. It can abrogate it or codify it, but not change it.

I didn't comprehend the rest of your sentence because it was overly long. I would note that I only ever see "stare decisis" mentioned in the filings of "pro se" litigants.
LOL. And?

I know the mystique of the law is cultivated by the courts and lawyers, as if it were something rather cut and dry, if you are trained in it.  Having seen the sausage making up front, and wised up over my inadequacy of understanding the law (as a teenager I saw things that I thought were shady, but thought "what do I know?"  evidently enough, as the courts latter put the perpetrators away a decade later), studied the history (my discipline) of various legal systems, and being able to read things written by lawyers for lawyers, including, but not limited to, the dissenting opinions of various decisions.  I'm not fooled anymore of the "expertise" of the law profession.

As for "stare decisis," plugging that into Lexisnexis comes up with over 3,000 results.  The one which leap immediately to mind was Justice Scalia, someone of no mean legal training, authority or expertise:
Quote
Justice Scalia, with whom the Chief Justice and Justice Thomas join, dissenting...
I
I begin with the Court's surprising readiness to reconsider a decision rendered a mere 17 years ago in Bowers v Hardwick.  I do not myself believe in rigid adherence to stare decisis in constitutional cases; but I do believe that we should be consistent rather than manipulative in invoking the doctrine. Today's opinions in support of reversal do not bother to distinguish--or indeed, even bother to mention--the paean to stare decisis coauthored by three Members of today's majority in Planned Parenthood v Casey. There, when stare decisis meant preservation of judicially invented abortion rights, the widespread criticism of Roe was strong reason to reaffirm it:
"Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe[,] . . . its decision has a dimension that the resolution of the normal case does not carry. . . . To overrule under fire in the absence of the most compelling reason . . . would subvert the Court's legitimacy beyond any serious question." 505 U.S., at 866-867, 120 L Ed 2d 674, 112 S Ct 2791.
Today, however, the widespread opposition to Bowers, a decision resolving an issue as "intensely divisive" as the issue in Roe, is offered as a reason in favor of overruling it. See ante, at 156 L Ed 2d, at 524. Gone, too, is any "enquiry" (of the sort conducted in Casey) into whether the decision sought to be overruled has "proven 'unworkable,'" Casey, supra, at 855, 120 L Ed 2d 674, 112 S Ct 2791.
Today's approach to stare decisis invites us to overrule an erroneously decided precedent (including an "intensely divisive" decision) if: (1) its foundations have been "eroded" by subsequent decisions, ante, at 156 L Ed 2d, at 524; (2) it has been subject to "substantial and continuing" criticism, ibid.; and (3) it has not induced "individual or societal reliance" that counsels against overturning, ante, at 156 L Ed 2d, at 524. The problem is that Roe itself--which today's majority surely has no disposition to overrule--satisfies these conditions to at least the same degree as Bowers....What a massive disruption of the current social order, therefore, the overruling of Bowers entails. Not so the overruling of Roe, which would simply have restored the regime that existed for centuries before 1973, in which the permissibility of and restrictions upon abortion were determined legislatively State-by-State. Casey, however, chose to base its stare decisis determination on a different "sort" of reliance. "People," it said, "have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail." 505 US, at 856, 120 L Ed 2d 674, 112 S Ct 2791. This falsely assumes that the consequence of overruling Roe would have been to make abortion unlawful. It would not; it would merely have permitted the States to do so. Many States would unquestionably have declined to prohibit abortion, and others would not have prohibited it within six months (after which the most significant reliance interests would have expired). Even for persons in States other than these, the choice would not have been between abortion and childbirth, but between abortion nearby and abortion in a neighboring State.
To tell the truth, it does not surprise me, and should surprise no one, that the Court has chosen today to revise the standards of stare decisis set forth in Casey. It has thereby exposed Casey's extraordinary deference to precedent for the result-oriented expedient that it is.
II
Having decided that it need not adhere to stare decisis, the Court still must establish that Bowers was wrongly decided and that the Texas statute, as applied to petitioners, is unconstitutional.
Lawerance v. Texas, 539 U.S. 558 at 586-7, 591-2

Appeal to authority is a fallacy, even in the law.  SCOTUS mentions stare decisis in at least two dozen or so decisions since Casey (1992).

"I knew I wanted to be married for the next couple years, but due to state law I was not given that option and was forced to either enter into a life long agreement or would be allowed no agreement at all." There you have it, procedural unconscionability; admittedly due to the actions of the state rather than the actions of the other party, but this powerlessness over the length of the agreement inherently places a party at a disadvantage during the initial negotiations and inevitably leads to inequality of bargaining power. The persons entering into the marriage are powerless to affect the terms about its duration, the only alternative is to not marry, an unacceptable alternative since marriage is considered a fundamental human right. But this issue won't come up since the state requires these contracts to have an escape clause, namely divorce.

That is not what procedural unconscionably is. Procedural unconscionably relates to the manner in which the contract was entered. What you described is not that. You appeal to the actions of the state, but the state is not a party in the contract theory of marriage. Rather, the parties are the two spouses.

So no, it is not "there you have it".
The law doesn't agree, at least IL law:
Quote
Certainly a significantly stronger promarriage policy is manifest in that action, which appears to us to reaffirm the traditional doctrine that marriage is a civil contract between three parties -- the husband, the wife and the State. ( Johnson v. Johnson (1942), 381 Ill. 362;  VanKoten v. VanKoten (1926), 323 Ill. 323.) The policy of the Act gives the State a strong continuing interest in the institution of marriage and prevents the marriage relation from becoming in effect a private contract terminable at will. This seems to us another indication that public policy disfavors private contractual alternatives to marriage.
Hewitt v. Hewitt, 77 Ill. 2d 49.

btw, on marriage as a contract:
Quote
The obligation of a contract is a duty of performing it recognized and enforced by the laws. An executor or administrator, though he has made no promise, is under a legal duty to perform the contracts of the deceased; the obligation of the contract is incumbent on him; and a State law releasing him would as clearly impair the obligation of the contracts of the deceased as a law releasing the living debtor.So a husband is bound to perform the contracts of his wife before marriage. Without making any promise, he takes on himself the legal duty of performing these contracts of hers, by voluntarily entering into the marital relation at a time when and place where the law made this duty incumbent on him. Could he be released without impairing the obligation of such contracts? For still stronger reasons was the obligation of this contract incumbent on the defendant. He voluntarily entered into such relations with this corporation as created a perfect legal obligation to pay this debt when it was contracted, and the plaintiff parted with his property to an insolvent corporation on the faith of this legal obligation incumbent on the defendant.
Hawthorne v. Calef, 69 U.S. 10.

Now, if you allowed a couple more liberty in setting their terms (say, requiring a renewal of the contract every 2-5 years) you might get around the procedural unconscionability. But I would still argue that a lifelong marriage contract that could not be unilaterally dissolved would run afoul of the 13th Amendment because the distribution of property within a marriage; now this is an argument specific to the United States, but I suspect that most western countries would invalidate a contract that resulted in involuntary servitude.

See above. You have not described procedural unconscionably. As luck would have it, just a few weeks ago I delivered a presentation to some other attorneys on the latest law in unconscionably, particularly in the area of arbitration clauses. So, unless there has been some earth-shattering change in the law this month, I am pretty up to date on this stuff.
Yeah, he doesn't have a leg to stand there.  The rules are clear:if you contract marriage freely, there is no problem of unconscionability.

Btw, do you have the document of the presentation?  I'd be interested in reading it.

Then you're not trying very hard...see above. Wink

I did see above. I saw that you do not understand what "procedural unconscionability" means.
GiC likes to pursue novel interpretations of law, to recreate society as he likes to see it.

I'm not a lawyer, I just do this stuff as a hobby

It shows.
Oh, I've seen goofier from those having JD's.  Heck, I've seen goofier from the bench, even the appellate court.  But then I'm privileged to be in the goofiest part of one of, if not the, goofiest states in the union.  Hard to lower the bar when it is rolling on the floor.

but I'm pretty sure the contract between AT&T and T-Mobile behind AT&T's recent failed attempt to acquire the same had escape clauses for both parties, I know AT&T had the option and I believe I recall T-Mobile having that option as well. Yes, there were serious consequences for invoking the escape clauses (in the end, it wasn't an issue, they both wanted the deal to go through, it's just that Uncle Sam had some reservations), but there are also consequences for a divorce in matters of custody and property distribution.

The courts have long rejected the idea that the presence of an escape clause implies that a contract is illusory.

I have a contracts practice and I frankly do not know what you are talking about regarding "escape clauses". Escape clauses are pretty much exclusive to insurance contracts. They are usually in the "other insurance" section and provide that the insurer only needs to provide coverage if there is no other coverage available. I have no idea what you are talking about regarding the AT&T/T-Mobile deal.

What do you think an escape clause is?
I'm thinking he is making it up. But then, so do the lawyers and the courts (plenty of case law referring to "escape clauses" can be had, including SCOTUS). Another area they seem to be common is in real estate.
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« Reply #20 on: March 23, 2012, 02:55:01 AM »

Here I'm outlining a constitutional argument that would still be relevant even IF the issue of inequality of bargaining power were addressed (which it hasn't been). Forcing someone to remain in a contract, for their entire life without the possibility of escape, where they are expected to give the fruits of their labor to another without just compensation would amount to involuntary servitude. Forget common law, contract that essentially turns an individual into a slave would not be enforceable under the 13th amendment.
only if buy the line that marriage is slavery.   Besides the originalist problems (all the states that ratified the 13th amendment didn't abolish marriage), the problem is there is no master nor slave: the fruits of the labor of both (only marriages of two persons are valid so far in the US) belong to the corporation of the marriage.
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« Reply #21 on: March 23, 2012, 07:49:45 AM »

You're right, it does, but the scary thing is that you're no better at this than I am and the only time I have to defend my position is when I'm killing time on an internet forum.

The Dunning-Kruger effect allows you to make this comment.
LOL. But then, lawyers are not immune from suffering Dunning-Kruger effect either. Especially those on the bench (especially if they don't belong there).  I won't even bring up those in the legislature.  I will bring up the former genius who ran this state (IL), who got his JD from Pepperdine U.. I think that is accredited.

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« Reply #22 on: March 23, 2012, 07:49:45 AM »

Most recently it has lead to the acceptance of divorce, with the understanding that the state has no compelling interest to force two independent parties to maintain a marriage agreement that neither desires (and as a bonus, it helped cut back on perjury...it seems that society accepted the concept of no-fault divorce well before the state did).
bringing the law into utter disrepute.  In IL it was said that there were two grounds for divorce, adultery and perjury.  Now there is only one.  Perjury.

Given the decline in marriage, it seems society didn't find no-fault divorce as acceptable as it thought.

So, today, marriage primarily regulates economic matters, the terms of which can be set by the parties involved, and they can, almost at will, enter into or dissolve this agreement by mutual consent; furthermore, that which is not property (such as children) is beyond the scope of a marriage and cannot be governed by a marriage agreement, rather it must be settled at the discretion of the state.
so in theory, not in practice.  The couple can make an agreement over the children (which for all intents and purposes are property in today's court.  Few care, and some are even bold enough to admit that), and the court is not bound by it and is supposed to independently determine the best interests of the children etc., but few courts want to bother with that.  Most refuse to, and simply will rubber stamp anything put in front of them.

This modern marriage bears far more resemblance to an economic contract than to the institution known to medieval Europe and the ancient world.
Actually, except for the ban on polygamy, it bears far more resemblance to Muslim marriage. Shocked.  Though it still pays lip service to that institution "known to medieval Europe and the ancient world." Actually, it is quite close to pagan Roman law on marriage.

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« Reply #23 on: March 23, 2012, 12:59:38 PM »

Why does legitimacy matter?  Are we back in the middle ages?
What is wrong with the Middle Ages? Aren't moral values supposed to pass on unchanged from one generation to the next? Take for example the sin of idolatry or worship of strange gods. It was wrong then and it is wrong now.

I don't see Nektarios talking about 'morality' per se. He's asking about the question of legitimacy as applied to the children--who aren't guilty of anything whether the parents were married or not. He's asking why we should care whether or not children are legitimate (as opposed to the Middle Ages where there were definite legal as well as social issues around being a 'bastard'). I'm not sure if I agree with him, but the question itself is totally separate from the morality of the parents.

Exactly.  Illegitimacy is a legal concept that was primarily used in the middle ages.  It was important because it had the potential to exclude inheritance rights.  So getting back to my question, why on earth does it matter if a person is "legitimate" or "illegitimate"? 

Yes, the transition from ancient inheritance laws to modern contract law has rendered the issue of legitimacy irrelevant. But with that, it has also rendered the institution of marriage obsolete...they're both equally absurd in a modern context. So if we're going to argue about something as outdated as marriage, why not throw in discussions about ancient inheritance laws, the legitimacy of children, spiritual degrees of separation, etc.? You know, things that were relevant back when marriage was actually relevant.
In the West, marriage was always in the sphere of contract law, before Constantine's conversion and after.  As long as the law presumes that the husband is the father of his wife's children (and that is the presumption, even if proven otherwise by paternity test), and other things in the bundle of the marriage contract, it's not irrelevant.  What has made marriage "irrelevant" is divorce law, in which case less and less men are willing to risk getting snared into the jurisdiction of a family court (not always possible, given the latitude given false accusations of paternity).

That's a fair point, under Roman Law marriage was pretty clearly a contract between the woman's father and either the husband or the husband's father. Furthermore, the wife's father could force a divorce, often with no goal beyond a return of the dowry. This is quite different from a contract between two equal parties that constitutes marriage today, but it was a contract nonetheless. This did change in theory and statute with the rise of Christianity and their curtailing of divorce, the integration of marriage into the feudal system of inheritance, and the rise of the influence of Germanic Law; but, in practice, there were always ways around this problem for the upper classes, at least in Jurisdictions that used a form of Roman Law, usually annulments gained by constructing such complex marriage laws that every marriage was technically invalid from the start, but if nothing else worked you could always just kill your spouse (which was often the better choice, especially if a title was at stake as was not uncommon in some places such as Constantinople).
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« Reply #24 on: March 23, 2012, 01:32:11 PM »

Appeal to authority is a fallacy, even in the law.  SCOTUS mentions stare decisis in at least two dozen or so decisions since Casey (1992).

That's fine. I didn't say the concept didn't exist. I merely remarked that it doesn't get bandied about in practice. Lawyers don't tell judges, "stare decisis says you have to rule my way!"

Quote
Yeah, he doesn't have a leg to stand there.  The rules are clear:if you contract marriage freely, there is no problem of unconscionability.

Btw, do you have the document of the presentation?  I'd be interested in reading it.

I am afraid I do not. I would be happy to provide you cites to a few of the highlighted cases, though.

Quote
Oh, I've seen goofier from those having JD's.  Heck, I've seen goofier from the bench, even the appellate court.  But then I'm privileged to be in the goofiest part of one of, if not the, goofiest states in the union.  Hard to lower the bar when it is rolling on the floor.

Yeah, I have seen goofier from other lawyers as well. Every field has its cranks. I have found that most simply don't know the relevant law. I am often able to trip people up on points of procedure because they have never read the rules but rather they just say "it has always been done this way."

Quote
I'm thinking he is making it up. But then, so do the lawyers and the courts (plenty of case law referring to "escape clauses" can be had, including SCOTUS). Another area they seem to be common is in real estate.

According to Westlaw, the term "escape clause" appears in ten US Supreme Court opinions (and not all of them involved contracts). The most recent one was in 1992.

It is certainly common for contracts to have clauses that excuse performance in certain circumstances, such as in the case of an insurance policy "escape clause" that becomes active when there is other coverage. However, there is no such thing as a "get out of jail" free clause that either party can use at any time. Otherwise, there is no contract at all. GiC seems to have trouble getting that (and a great many other things).

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« Reply #25 on: March 23, 2012, 01:46:32 PM »

Yes, a marriage contract is easier to dissolve than many other contracts, but it's a necessity derived from contract law itself. Over the last century we have started to realize that length of the contract 'till death do us part' combined with the intimate nature of the contract is inherently unconscionable, so without a clause that allows it to be dissolved unilaterally any marriage would be null and void from the outset due to unconscionably. Unilateral divorce without fault is a  consequence of marriage falling under contract law, not evidence of divergence.
Utter crap.

No idea of "till death do us part" being inherently unconscionable played any role in the decline of the marital status in the law.  No case law, no statute nor any legislative history refers to such an idea in its dismantling of traditional marriage.  I don't know how such an idea wouldn't be barred by the prohibition on collusion for divorce. 

Unilateral divorce without fault is a consequence of lazy lawyers hungry for business.  Nothing more.

Can you cite any case law or statue of the US which would allow a clause for unilateral dissolution?

I would argue that no-fault divorce by mutual consent was the big legal/social advancement, everything beyond that was just the natural evolution of the law.

And what are you getting at when you reference "prohibition on collusion for divorce"...that might have been valid 50 years ago, but has been rendered moot by no-fault divorce.

Quote
they can also be modified by a will, or even a business contract (e.g. the sale of property obviously means that your spouse won't inherit it).

This is misleading, as you are confusing the modification of the subject matter of the contract with the contract itself.

The primary purpose of marriage in the eyes of the state is for matters of property distribution and inheritance; in fact, this is the only reason the state is even allowed to be involved in marriage in the United States, if it was involved for religious or cultural reasons the act of granting a marriage license would likely be a violation of the establishment clause (I'm not sure marriage licenses aren't in violation of the establishment clause anyway, but at least the economic implications give the state a viable argument for being allowed to issue them). So since the distribution of property is the sole legitimate use of civil marriage, any change in the manner in which property is distributed is a de facto change to the contract itself.
Wrong yet again.  The case law on divorce is replete with the pieties of the dependence of the state on marriage to raise proper citizens that state cannot do, blah, blah, blah.  No, its not a violation of the establishment clause: SCOTUS has upheld the ban on polygamy, for instance.

I was just talking with a friend of mine, a former law maker (though he preferred to think of himself as a "law giver"), that the rise of reverse mortgages will relieve yuppies of any reason to have children which they aren't raising (the nanny is) anyways.

Property might be the only thing the courts enforce, but is far from the only thing they stick their noses in.

Yes, there's a lot of rhetoric from the state about marriage and family, but the meaning of marriage is really found in how divorces are handled since that's the only time the state generally gets involved (except for custody, but that's becoming less and less related to marriage). The reality is, that the only thing effected by marriage is property.

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Yes, most jurisdictions have a  statutory default contract for matrimonial regimes that will apply if no additional steps are taken, but the defaults can be heavily modified by a pre-nuptial agreement.

This seems to be a fair statement, though I still think your characterisation of the common law of marriage and divorce as a "statutory default contract" is incorrect.

I am no legal genius, so I could be wrong about much of the above. Unfortunately, I think your view of the law is gathering strength.

It is gathering strength, it has been ever since Locke, but as we can see with continuing arguments about the nature around the world and especially in the United States over the last few years, we still have a little ways to go. We're in the middle of the transition from common law marriage to contract law marriage, with some countries further along than others, but most the western world, both common and civil law jurisdictions alike, have settled on the contract law approach and full implementation seems almost inevitable at this point.
Nothing is inevitable.

In your scenario, as marriage becomes reduced more to just a contract, less people are signing on.  Which would seem to please your world view, which however doesn't deal with what happens when no future generation is being raised.  Societies tend to die that way.

I really don't think the change in divorce law is behind less people getting marriage, though the two do have a common cause. A recognition of the equality of men and women means that both are free to engage in whatever lifestyle they like and to enter into whichever agreements they want. This lead to the decline of traditional moral codes, which were dependent on the inequality of power, as well as marriage turning from a transaction to an agreement between two equal parties. It's the (rather fortunate) decline of traditional morality and the acceptance of cohabitation that has lead to a reduction in marriage; people used to actually get married just so they can have sex, that barbaric practice is quickly being abandoned and loveless marriages are becoming a thing of the past (they largely already are for those under 50).  
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« Reply #26 on: March 23, 2012, 03:45:07 PM »

Most recently it has lead to the acceptance of divorce, with the understanding that the state has no compelling interest to force two independent parties to maintain a marriage agreement that neither desires (and as a bonus, it helped cut back on perjury...it seems that society accepted the concept of no-fault divorce well before the state did).
bringing the law into utter disrepute.  In IL it was said that there were two grounds for divorce, adultery and perjury.  Now there is only one.  Perjury.

Given the decline in marriage, it seems society didn't find no-fault divorce as acceptable as it thought.

That's the main reason California instituted no-fault divorce, once things like impotence and adultery were no longer big social taboos, people were willing to regularly falsely admit to them, making a mockery of the court and even making perjury socially acceptable (we've never fully reversed that damage). No fault divorce simply became a legal necessity; the legislature didn't want to change marriage and society, but marriage and society had already changed without consulting them and they had to play catch-up.

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So, today, marriage primarily regulates economic matters, the terms of which can be set by the parties involved, and they can, almost at will, enter into or dissolve this agreement by mutual consent; furthermore, that which is not property (such as children) is beyond the scope of a marriage and cannot be governed by a marriage agreement, rather it must be settled at the discretion of the state.
so in theory, not in practice.  The couple can make an agreement over the children (which for all intents and purposes are property in today's court.  Few care, and some are even bold enough to admit that), and the court is not bound by it and is supposed to independently determine the best interests of the children etc., but few courts want to bother with that.  Most refuse to, and simply will rubber stamp anything put in front of them.

I would say that they can in practice, but not in theory...at least if you're a woman. Unfortunately, marriage law seems to be the worst and most inconsistently adjudicated of all forms of law, but this isn't a recent invention, it's always been the case. At least as far back as ancient Rome, I can't really speak to any case law before that.

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This modern marriage bears far more resemblance to an economic contract than to the institution known to medieval Europe and the ancient world.
Actually, except for the ban on polygamy, it bears far more resemblance to Muslim marriage. Shocked.  Though it still pays lip service to that institution "known to medieval Europe and the ancient world." Actually, it is quite close to pagan Roman law on marriage.

Roman law is probably the closest parallel, though marriages weren't quite as easy to dissolve in ancient Rome as they are today; the biggest change is who the parties involved in a marriage are, they've changed from the woman's father and the man/man's father to the man and the woman themselves. Taken by itself, Roman marriage and inheritance law was quite advanced and modern, it is really only the concept of pater familias that betrays Roman law as an ancient system of laws. By the late Byzantine period, after the power of pater familias was initially allowed to both sexes (under certain conditions) and eventually usurped into imperial authority by the eleventh century. As Romaios said in the Peira, "Compared to the Emperor's power, pater familias is nothing." Starting around this point, and especially from the thirteenth century onward, Roman law had become quite modernized and more closely resembled the law in modern civil law jurisdictions than it did the laws of ancient Rome.

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« Reply #27 on: March 23, 2012, 05:15:45 PM »

No one cares what happens in the court room, unless it's the Supreme Court or a federal appellate court it's largely irrelevant to the academic discipline of law. We're talking about the theory of contract of law across several jurisdictions, transcending details of implementation in common and civil law systems in dozens of nations, and comparing it to marriage law in the respective jurisdictions. And considering that this is a change that has only started to enter into the laws of these several jurisdictions over the last 200 years, I would think discussion about how such universal precedent is established would be more useful than a debate over what language people at the local court house prefer to use when referencing established precedent.

The litigants care very much. And, I hate to burst your bubble, but no one really cares about the "academic discipline of law". What courts care about is the application of law. As the U.S. Supreme Court remarked in North Dakota State Bd. of Pharmacy v. Snyder's Drug Stores, Inc., 414 U.S. 156 (1973), "Whether the legislature takes for its textbook Adam Smith, Herbert Spencer, Lord Keynes, or some other is no concern of ours." As it happens, the U.S. Supreme Court has a whopping 25 opinions in all of history that contain the string "Adam Smith", and not even all are references to the author of The Wealth of Nations; sometimes it is a party's name. People don't get riled up about high profile cases before the Supreme Court because they care about "academic discipline"; they care about how the application of the law will affect them.

How about 'Locke' or 'Blackstone', how many time were those cited...especially the latter? Heck, how many times has Justice Kennedy alone cited Blackstone? Also, people rarely get riled up about any SCOTUS case, even lawyers who follow the court are but a small subset, the average person can maybe name, what, maybe 10 cases, from all those heard over nearly 250 years, off the top of their head? And, yes, the cases do have practical consequences, but we're not still reading Barron, Dread Scott, and Plessy because of their legal implications, the rulings of any final court of appeals also have considerable academic value.

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Although, evenif what you say about "academic discipline were true, I have to correct your statement. The Supreme Court and federal appellate courts have nothing to say, for example, about the academic discipline of law when it comes to many matters such as unconscionability in contract. The reason is because there is no federal common law for contract. A federal court interpreting a contract will apply the governing state law. The Erie case tells us that this will be the case in most matters (although it is an exaggeration to say that there is no federal common law). If you had ever seen the inside of a law school, you would know that most of the cases in a contract textbook are state law cases. Again, the reason is because there is no common law of contract.

There isn't? Someone should have told that to Blackstone so he wouldn't have made such a fool of himself by discussing them in his commentaries. It may be largely a matter of historical curiosity today due to significant statutory changes, but there most certainly were contracts and systems for administering them under the common law.

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Once you've already established substantive unconscionablity, which I have...yes, it does. So, speaking of things you should have learned in the first year of law school, why don't you go back and re-read Williams v. Walker-Thomas Furniture? At least, I'm assuming someone made you read it at some point.

No, it doesn't. I do not know why you keep harping on Williams, since it is only binding in the District of Columbia. For a U.S. Supreme Court case on why unequal bargaining power is not per se procedural unconscionability, you may wish to review  Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 32-33 (1991) (allowing arbitration of claims arising under the Age Discrimination in Employment Act of 1967 despite allegations of unequal bargaining power between employers and employees). For a more recent discussion, you may wish to review last year's AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011) (applying California law and allowing class action waiver in consumer contract despite alleged inequality in bargaining power). It is true that inequality of bargaining power can be probative evidence of procedural unconscionability, but it is not conclusive evidence.

We're arguing a moot issue here, the easy availability of divorce under the current system means that what we're discussing will never go before a court. And, as you mentioned, the supreme court rarely handles contract issues, so this case has gained significant academic importance in the understanding of American contract law.

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As it happens, I currently am handling an appeal on the issue of unconscionability. I will be happy to provide a citation to that opinion once the appellate court issues the opinion. I would expect it by this time next year.

Send it my way, I'll certainly read it.

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LMAO...I was right, it was an arbitration clause. Convenient piece of information to leave out. But, please, tell me, what is so unconscionable about an arbitration clause? That and why was an ambulance rushing someone to the nursing home? If it was that big of an emergency, why didn't they take him to the ER? Wink

Why was it a convenient piece of information to leave out? The content of the contract is irrelevant to the issue. So, was the scenario I provided procedurally unconscionable or not?

Of course not, arbitration fulfills the requirements of due process just as readily as a trial before the courts. It's no more unconscionable than having to try some cases in state court, others in federal court, and others before a military court, arbitration is simply another perfectly valid legal system that's available in certain cases, complete with due process and the other constitutional grantees.

At least that's the position of the court.

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And really man? less than a month after Marmet Health Care Center v. Brown? After I told you I follow the court? Come on, you've got to be better than that. And on top of all that, the issue in these cases had nothing to do with contract law, they were cases about the Supremacy Clause, which is COMPLETELY IRRELEVANT to our discussion! But at least we're having fun. Wink

I do not know why you mentioned Marmet, other than to mention it.

Oh, I don't know. Why would a supreme court case dealing with arbitration agreements and nursing homes be relevant to a case that's also about arbitration agreements and nursing homes? Hmmm...

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I am not having fun. It is annoying to encounter an arrogant Googler. Look, I have been doing this every day for years, not in my spare time to sound smart at parties. If I am wrong, I can be disciplined by the bar, sued in malpractice, or at least fired by the client. If you are wrong, you can pretend that you aren't and rattle off about John Locke. Thanks to my intellectual prowess, I don't get it wrong, which is why megacorps pay me megabucks to handle their contract matters at the trial and appellate level. Who entrusts their contract matters to you?

And yet, despite the fact that I am neither paying nor coercing you, you keep participating in the discussion. Wink

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If you were discussing some point of, say, real property law or criminal law, I would not have as much as an advantage over you because those are not my practice areas. However, I have a 100% commercial practice and have particular expertise in the law of unconscionability because of my work in defending consumer claims. You simply picked the wrong person to have this discussion with.

I can tell, which is probably why you're so reluctant to go back to my original point and discuss it in the context of comparative law and also why I started out referencing civil law along side common law. My expertise is in civil law, not common law, so I'm always much more comfortable if I can keep it in the discussion, I've also found that most Americans, including lawyers, are not very good at civil law (though I'm sure there are some exceptions in Louisiana) so many people are reluctant to discuss it at any length...we all prefer to stay in our comfort zone.

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That's what they're trying to argue in Pedersen v. OPM and Gill v. OPM, but Uncle Sam seems to disagree with you. If we get lucky, the Supreme Court will take the cases and we'll see who's right, you and GLAD or the United States congress. But don't you think it's just a little soon to be calling the case? Some of the Justices are getting pretty old, they might not even be on the court when (if) it hears the case. But good luck, I'm rooting for you on this one. Grin

How does "Uncle Sam" disagree with me?

They're arguing that the DOMA supersedes state marriage law, if that's true, then no, you don't have 50 different systems to choose from (plus DC and the territories), rather one uniform system imposed by the federal government.

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Yes, actually, that is how academic law is done. Which is the only relevant practice of law for this discussion.

There isn't any such thing as the academic practice of law. Professors do not practice. It may surprise you to know that some law school professors, at very prestigious law schools, do not even have law licenses. And no,

Why would they have a law license? They're academics. What they should have is a real law degree (an LL.D. or an S.J.D./J.S.D.), but often don't.

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To bring this back to where this all started, we're discussing how (or whether, if you prefer) inheritance law, and marriage law with it, became little more than a branch of contract law. I had argued that the rise of the merchant classes and relative decline of the aristocracy had undermined the motivation behind primogeniture, initiating a movement of inheritance law towards contract law when wills of personality became more important than wills of land and with the abolition of knight-service tenure. With inheritance and succession largely decoupled from the institution of marriage, its traditional purpose was undermined and it began to slowly evolve from a business agreement to a partnership, albeit an unequal one. This, along with the several other benefits brought by the rise of the merchant classes, slowly lead to the empowerment of women in society, including the right of a married women to enter into a contract and the related decline of the idea that marriage unified two people into a single person (namely, the husband...which had largely been the reasoning behind now allowing married women to enter into a contract). Once marriage turned into a (relatively) equal partnership, with each party being able to acquire and dispense property independently and of their own accord, the primary focus of marriage law began to change form matters of inheritance and succession to the distribution of property within, and after, a marriage. This naturally lead to the modern prenuptial agreement in order to give the parties entering into a marriage some degree of control over the economic parameters of their agreement. Most recently it has lead to the acceptance of divorce, with the understanding that the state has no compelling interest to force two independent parties to maintain a marriage agreement that neither desires (and as a bonus, it helped cut back on perjury...it seems that society accepted the concept of no-fault divorce well before the state did). So, today, marriage primarily regulates economic matters, the terms of which can be set by the parties involved, and they can, almost at will, enter into or dissolve this agreement by mutual consent; furthermore, that which is not property (such as children) is beyond the scope of a marriage and cannot be governed by a marriage agreement, rather it must be settled at the discretion of the state. This modern marriage bears far more resemblance to an economic contract than to the institution known to medieval Europe and the ancient world.

That is nice, but your original point was that marriages were voidable because they were unconscionable. You have not supported that opinion with any legal authority.

No, that came up about three or four posts into the discussion. Wink

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Now what exactly was your point?

My point was that you were talking out of an orifice commonly known as the "tooter". I do not know your trade, but I would not presume to tell you how it is done. I do not know why you do not do the same.

Why wouldn't you? Unless you're the pope, it really doesn't matter who's saying what, it matters what's being said. The only time I see people appeal to their credentials (especially professional, as opposed to academic, ones) is when they have nothing else to stand on. But if you must know, I studied theoretical mathematics and then theology with an emphasis on canon law. I'm currently a senior materials engineer and project manager despite having no formal training in the field, which is how I've come to see the ineffectiveness of credentials. I don't know how many people I've met that are registered/certified/trained to do something and may even know how to do it proficiently, but who have no grasp of the theory behind it. Maybe it's not such a problem in law (though I doubt it), but I know that in engineering you often have to go through dozens of applications from registered engineers, many with masters degrees in engineering, before finding one who is actually understands his profession and is capable of solving problems he can't find examples of in his college textbooks.
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« Reply #28 on: March 23, 2012, 08:12:45 PM »

Appeal to authority is a fallacy, even in the law.  SCOTUS mentions stare decisis in at least two dozen or so decisions since Casey (1992).

That's fine. I didn't say the concept didn't exist. I merely remarked that it doesn't get bandied about in practice. Lawyers don't tell judges, "stare decisis says you have to rule my way!"
To be fair, I don't think Greeky started out that way:
That statement would probably be more accurate in several common law countries, such as the United Kingdom, but in the United States where common law is subservient to constitutional law, it can and has been changed and then that change incorporated into our common law tradition through the Supreme Court using the traditions of common law, such as stare decisis.
Stare decisis is basically what stops SCOTUS decisions from lying around as dicta, e.g. O'Gilvie v. United States, 519 U.S. 79, 84 (1996) (where s.d. is invoked but not by name):
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In holding that ADEA liquidated damages are not covered, we said that they are not "designed to compensate ADEA victims," id., at 332, n. 5; instead, they are "'punitive in nature,'" id., at 332, quoting Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 125, 83 L. Ed. 2d 523, 105 S. Ct. 613 (1985).
Applying the same reasoning here would lead to the conclusion that the punitive damages are not covered because they are an element of damages not "designed to compensate. . . victims," Schleier, 515 U.S. at 332; rather they are "'punitive in nature,'" ibid. Although we gave other reasons for our holding in Schleier as well, we explicitly labeled this reason an "independent" ground in support of our decision, 515 U.S. at 334. We cannot accept petitioners' claim that it was simply a dictum.
It is also the reason why in practice (although not in theory) that there is Federal common law.  That, and the fact that practically anything can be cited as persuasive authority (even if it is not), including the decisions of the lower Federal Courts.

"binding precedent" seems more common, at least in IL (though that might have to do with the structure of our appellate courts, their jurisdiction and authority).

Yeah, he doesn't have a leg to stand there.  The rules are clear:if you contract marriage freely, there is no problem of unconscionability.

Btw, do you have the document of the presentation?  I'd be interested in reading it.

I am afraid I do not. I would be happy to provide you cites to a few of the highlighted cases, though.
That will do.  Thanks.

Oh, I've seen goofier from those having JD's.  Heck, I've seen goofier from the bench, even the appellate court.  But then I'm privileged to be in the goofiest part of one of, if not the, goofiest states in the union.  Hard to lower the bar when it is rolling on the floor.

Yeah, I have seen goofier from other lawyers as well. Every field has its cranks.
LOL. Indeed!  I don't know what Greeky's field is, so I can't mention his cranks.  Many would say that Patricia Crone is one of mine, but I would dispute that.

I have found that most simply don't know the relevant law.

some even will admit that outside their field, they are just a pro se.

I am often able to trip people up on points of procedure because they have never read the rules but rather they just say "it has always been done this way."
I've heard that from many judges and lawyers on "family court." Everyone knows everyone else, they have their own way of doing things, and whether that has any resemblance to the law or not doesn't enter their minds.

However, there is no such thing as a "get out of jail" free clause that either party can use at any time. Otherwise, there is no contract at all. GiC seems to have trouble getting that (and a great many other things).
Can't argue with that.
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« Reply #29 on: March 23, 2012, 08:12:45 PM »

Yes, a marriage contract is easier to dissolve than many other contracts, but it's a necessity derived from contract law itself. Over the last century we have started to realize that length of the contract 'till death do us part' combined with the intimate nature of the contract is inherently unconscionable, so without a clause that allows it to be dissolved unilaterally any marriage would be null and void from the outset due to unconscionably. Unilateral divorce without fault is a  consequence of marriage falling under contract law, not evidence of divergence.
Utter crap.

No idea of "till death do us part" being inherently unconscionable played any role in the decline of the marital status in the law.  No case law, no statute nor any legislative history refers to such an idea in its dismantling of traditional marriage.  I don't know how such an idea wouldn't be barred by the prohibition on collusion for divorce. 

Unilateral divorce without fault is a consequence of lazy lawyers hungry for business.  Nothing more.

Can you cite any case law or statue of the US which would allow a clause for unilateral dissolution?
I would argue that no-fault divorce by mutual consent was the big legal/social advancement, everything beyond that was just the natural evolution of the law.
I didn't ask you to argue it.  I asked you to cite some evidence.

And what are you getting at when you reference "prohibition on collusion for divorce"...that might have been valid 50 years ago, but has been rendered moot by no-fault divorce.
No, it hasn't.  Every divorce settlement I have ever seen has a "non-collusion" clause.  Marriages of convenience to defraud immigration, in the very least, guarantees that they will not become moot, e.g. Ludwak et al. v. United States, 344 U.S. 604

they can also be modified by a will, or even a business contract (e.g. the sale of property obviously means that your spouse won't inherit it).

This is misleading, as you are confusing the modification of the subject matter of the contract with the contract itself.

The primary purpose of marriage in the eyes of the state is for matters of property distribution and inheritance; in fact, this is the only reason the state is even allowed to be involved in marriage in the United States, if it was involved for religious or cultural reasons the act of granting a marriage license would likely be a violation of the establishment clause (I'm not sure marriage licenses aren't in violation of the establishment clause anyway, but at least the economic implications give the state a viable argument for being allowed to issue them). So since the distribution of property is the sole legitimate use of civil marriage, any change in the manner in which property is distributed is a de facto change to the contract itself.
Wrong yet again.  The case law on divorce is replete with the pieties of the dependence of the state on marriage to raise proper citizens that state cannot do, blah, blah, blah.  No, its not a violation of the establishment clause: SCOTUS has upheld the ban on polygamy, for instance.

I was just talking with a friend of mine, a former law maker (though he preferred to think of himself as a "law giver"), that the rise of reverse mortgages will relieve yuppies of any reason to have children which they aren't raising (the nanny is) anyways.

Property might be the only thing the courts enforce, but is far from the only thing they stick their noses in.

Yes, there's a lot of rhetoric from the state about marriage and family, but the meaning of marriage is really found in how divorces are handled since that's the only time the state generally gets involved (except for custody, but that's becoming less and less related to marriage). The reality is, that the only thing effected by marriage is property.
Hardly.  Take for instance the common end run around the constitutional ban on deptors prison, done every day in divorce court in the name of "contempt of court."

Yes, most jurisdictions have a  statutory default contract for matrimonial regimes that will apply if no additional steps are taken, but the defaults can be heavily modified by a pre-nuptial agreement.

This seems to be a fair statement, though I still think your characterisation of the common law of marriage and divorce as a "statutory default contract" is incorrect.

I am no legal genius, so I could be wrong about much of the above. Unfortunately, I think your view of the law is gathering strength.

It is gathering strength, it has been ever since Locke, but as we can see with continuing arguments about the nature around the world and especially in the United States over the last few years, we still have a little ways to go. We're in the middle of the transition from common law marriage to contract law marriage, with some countries further along than others, but most the western world, both common and civil law jurisdictions alike, have settled on the contract law approach and full implementation seems almost inevitable at this point.
Nothing is inevitable.

In your scenario, as marriage becomes reduced more to just a contract, less people are signing on.  Which would seem to please your world view, which however doesn't deal with what happens when no future generation is being raised.  Societies tend to die that way.

I really don't think the change in divorce law is behind less people getting marriage, though the two do have a common cause.
Somewhere I have a study on states which mandated joint custody (a dozen or so) or awarded joint custody a lot (a dozen or so more, IIRC).  Such states showed not only a drop in divorce after the change in law/practice, but a rise in the marriage rate.  They theorized that wives (75% of the time those who sue for divorce), learning that wouldn't get to have their cake and eat it too, decided more to resolve problems in the marriage (there is Gallagher's study on how those couples who stay together do better than those who split).

A recognition of the equality of men and women means that both are free to engage in whatever lifestyle they like and to enter into whichever agreements they want. This lead to the decline of traditional moral codes, which were dependent on the inequality of power, as well as marriage turning from a transaction to an agreement between two equal parties. It's the (rather fortunate) decline of traditional morality and the acceptance of cohabitation that has lead to a reduction in marriage; people used to actually get married just so they can have sex, that barbaric practice is quickly being abandoned and loveless marriages are becoming a thing of the past (they largely already are for those under 50).  
Yes, and with the decline in reproducing, the Islamists will import their idea of marriage just by the numbers.

And as for barbaric, that decline in traditional morality shows up in the rise in domestic violence, because, as the studies all show, a woman is nowhere safer, statistically speaking, than in her home with her husband the father of her children.  That is why the Domestic Violence "activists", like our own dear Mz. Fluke, lump husbands with boyfriends, shack ups and one night stands, lest that little fact stand out and portray husbands as a good thing.
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« Reply #30 on: March 23, 2012, 09:05:25 PM »

How about 'Locke' or 'Blackstone', how many time were those cited...especially the latter? Heck, how many times has Justice Kennedy alone cited Blackstone? Also, people rarely get riled up about any SCOTUS case, even lawyers who follow the court are but a small subset, the average person can maybe name, what, maybe 10 cases, from all those heard over nearly 250 years, off the top of their head? And, yes, the cases do have practical consequences, but we're not still reading Barron, Dread Scott, and Plessy because of their legal implications, the rulings of any final court of appeals also have considerable academic value.

In that case, you haven't been paying much attention. Most sessions there is at least one case that gets a lot of mainstream news coverage, such as Citizens United.

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There isn't? Someone should have told that to Blackstone so he wouldn't have made such a fool of himself by discussing them in his commentaries. It may be largely a matter of historical curiosity today due to significant statutory changes, but there most certainly were contracts and systems for administering them under the common law.

I intended to say that there is no federal common law of contract. I inadvertently omitted a word.

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Of course not, arbitration fulfills the requirements of due process just as readily as a trial before the courts. It's no more unconscionable than having to try some cases in state court, others in federal court, and others before a military court, arbitration is simply another perfectly valid legal system that's available in certain cases, complete with due process and the other constitutional grantees.

Um, what? Those are all substantive issues that have nothing to do with procedural unconscionability. In this case, a elderly woman had to sign admission papers after her husband fell into dire medical straits and was rushed to a nursing home by ambulance. It was over 30 pages of paperwork in small print, which she could not read because of cataracts and macular degeneration. This is a conscionable way to enter a contract to you?

I think you think don't understand what procedural unconscionability is.

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At least that's the position of the court.

What is the position of what court?

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Oh, I don't know. Why would a supreme court case dealing with arbitration agreements and nursing homes be relevant to a case that's also about arbitration agreements and nursing homes? Hmmm...

Because it was addressing preemption under the Federal Arbitration Act on grounds of substantive unconscionability. I posed a hypothetical regarding procedural unconscionability. Like I said, I think that you do not understand this distiction. You are fixated on substantive unconscionability but fail to address my repeated points on procedural unconscionability.

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And yet, despite the fact that I am neither paying nor coercing you, you keep participating in the discussion. Wink

Sometimes it is fun to pull the wings off of flies.

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I can tell, which is probably why you're so reluctant to go back to my original point and discuss it in the context of comparative law and also why I started out referencing civil law along side common law. My expertise is in civil law, not common law, so I'm always much more comfortable if I can keep it in the discussion, I've also found that most Americans, including lawyers, are not very good at civil law (though I'm sure there are some exceptions in Louisiana) so many people are reluctant to discuss it at any length...we all prefer to stay in our comfort zone.

Actually, your original point was that marriage was an unconscionable contract. I have pressed you to set forth what the procedural unconscionability is, but you have failed to do so.

It might interest you to know that I booked my Comparative Law class, actually.

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They're arguing that the DOMA supersedes state marriage law, if that's true, then no, you don't have 50 different systems to choose from (plus DC and the territories), rather one uniform system imposed by the federal government.

Actually, that is not how federalism works. The federal constitution supersedes state constitutions, yet no one says there aren't 50 different state constitutions.

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Why would they have a law license? They're academics. What they should have is a real law degree (an LL.D. or an S.J.D./J.S.D.), but often don't.

I think they should have a license because law school, despite the hoity-toity trappings, is trade school. Thus, I want people licensed and experienced in the trade to teach it.

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No, that came up about three or four posts into the discussion. Wink

Regardless, it is an argument you have made and failed to support.

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Why wouldn't you? Unless you're the pope, it really doesn't matter who's saying what, it matters what's being said. The only time I see people appeal to their credentials (especially professional, as opposed to academic, ones) is when they have nothing else to stand on. But if you must know, I studied theoretical mathematics and then theology with an emphasis on canon law. I'm currently a senior materials engineer and project manager despite having no formal training in the field, which is how I've come to see the ineffectiveness of credentials. I don't know how many people I've met that are registered/certified/trained to do something and may even know how to do it proficiently, but who have no grasp of the theory behind it. Maybe it's not such a problem in law (though I doubt it), but I know that in engineering you often have to go through dozens of applications from registered engineers, many with masters degrees in engineering, before finding one who is actually understands his profession and is capable of solving problems he can't find examples of in his college textbooks.

It is my experience that cranks without credentials are the ones who crow the loudest about how credentials don't matter. When you fly in an airplane flown by a pilot who has no credentials, you might be more persuasive.

As an engineer, I am sure that you realize that the plural of "anecdote" is not "data".

By the way, you said you "studied" math and theology. What are your actual credentials?

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