Changing Name Changing: Framing Rules and the Future of Marital Names Elizabeth E Emenst
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The University of Chicago Law Review Volume 74 Summer 2007 Number 3 © 2007 by The University of Chicago Changing Name Changing: Framing Rules and the Future of Marital Names Elizabeth E Emenst Introduction ......................................................................................................... 763 I. The N ature of the Problem ............................................................................ 767 A . The Trouble with Nam es ............................................................... 768 B. The Trouble with Marital Naming Choices ................................ 774 II. Current Social Defaults: Practices of Family Naming ............................... 785 A. What Spouses Do with Their Names ........................................... 785 B. What Parents Do with Their Children's Names .......... 791 III. Social Alternatives: Crafting A Sustainable Egalitarian Convention ....793 A. Common Alternatives to the Mrs. His Name Convention ........ 794 B. A Promising Alternative: Biphenation ....................................... 804 IV. Current Legal Defaults: State Procedures for Marital Names ................ 809 A. Keeping: The Least Sticky Default (But Only for Women) ...... 812 B. The Process (Costs) for Various Marital Name Changes .......... 816 t Associate Professor of Law, Columbia Law School. For helpful conversations and com- ments on earlier versions, I thank Ian Ayres, Katharine Baker, Vincent Blasi, Richard Briffault, Mary Anne Case, Caroline Mala Corbin, Michael Dorf, Ariela Dubler, Melvin Eisenberg, Robert Ferguson, Philip Genty, Suzanne Goldberg, Jack Greenberg, Philip Hamburger, Scott Hemphill, Harry Kavros, Sarah Lawsky, Jonathan Levav, Jacob Levy, Kent McKeever, Aloisia Moser, Henry Monaghan, Melissa Murray, Gerald Neuman, Alex Raskolnikov, Robert Rasmussen, Carol Sanger, Catherine Sharkey, Rachel Smith, Elizabeth Scott, Robert Scott, Richard Squire, Geof- frey Stone, Mark Stopfer, Peter Strauss, Susan Sturm, Cass Sunstein, Guy Uriel-Charles, John Witt, Mary Zulack, and participants in faculty workshops at the S.J. Quinney School of Law at the University of Utah and Columbia Law School, in the Columbia Journal of Gender & Law Symposium on Gender, Sexuality, and Law, in the 15th Annual Women and Society Conference at Marist College, and in the American Constitution Society and Law Women at NYU. Excellent research assistance was provided by Joya Banerjee, Andrew Brantingham, Jordan Connors, John Gildersleeve, Guy Gribov, Maeve Herbert, and Leah LaPorte, and special thanks goes to Beth Williams for her outstanding research support. This Article is © 2007 by Elizabeth F. Emens. The University of Chicago Law Review [74:761 C . D esk-C lerk L aw ............................................................................ 823 V. New Uses of Existing Default Categories: Setting the Default ................ 827 A . Switching the D efault .................................................................... 829 B . A ltering R ules ............................................................................... 834 C. Forced C hoosing ............................................................................ 836 D . M enus .............................................................................................838 VI. Framing Rules: Regulating How the Question Is Asked ........................ 839 A. Interrogatory Frames: How the Question Is Worded ................ 843 B. Embedded Frames: The Context of the Question ..................... 844 C. Informational Frames: What Accompanies the Question ....... 848 D. Time Matters: The Timing of Frames .......................................... 851 E. Whose Frame: Different Framing Entities ................................. 853 E Beyond Names: Implications for Other Areas of Law .............. 853 V II. Two Possible R eform s ................................................................................ 854 A . The New York M odel .................................................................... 856 B. A More Ambitious Model ............................................................ 859 C onclusion ........................................................................................................... 861 Marital names shape our ideas about marriage, about our children, and about our selves. For about a hundred years, American states required married women to take their husbands' names in order to engage in basic civic activities such as voting. While the law no longer requires women to change their names, it still shapes people's decisions about maritalnames in both formal and informal ways For example, the formal legal default rule in most places is that both spouses keep their premaritalnames. This rule is minoritarianfor women, which means it imposes a range of social costs on women who make the most conventional naming choice. But the rule is majoritarianfor men, which means it does nothing to unsettle the most robust aspect of our currentmarital naming conventions-the fact that men almost never change their names, even to hyphenate. This fact about men's names-coupled with the fact that children almost always have their father's name, even if their mother makes an unconventional naming choice for herself-means that women are ostensibly choosing their marital names, but in fact they are choosing from a very limited decision set. That is, women effectively can have nominal continuity either with their past (their families of origin and premaritalselves) or with theirfuture (their children and possibly their spouse), but not across all three generations. The formal legal default that both spouses keep their names reinforces this bind for women. Informally, legal institutions also shape choices through "desk-clerk law," that is, advice given by the government functionaries who answer public inquiries at state and local agencies. These legal actorsfrequently mislead people and discourage unconventional naming choices as a result of ignoranceor their own views about properpractice. Because states historically reinforced a regime of patrilinealdescent of names, what might seem a neutral default regime is inadequate. States should set defaults and frame choices to en- courage more egalitariandecisions about whether to change names and how. States could try any number of creative solutions using existing categoriesfor thinking about choice regimes, drawn from contract-law theory: default rules (what rule the state fills in if the parties don't speak to the contrary); menus (what range of options parties are given); and altering rules (what steps parties must take to contract around the default rule into different alternatives). Most modestly, states could adopt a "forcedchoosing" approach,requiring both spouses to state their postmaritalnames. More ambitiously, states might encourage hyphenation and, at the next generation, "biphena- 2007] Changing Name Changing tion"-defined as the passing of one name from each hyphenated parent-by making this the default option. States could also create what might be called "framing rules," which would dictate how the state asks the question of parties in a choice regime. Framing rules encompass what information the state gives parties,what words it uses, what context surrounds the question, as well as the timing of the question. Framingrules are particularlyimportant in contexts, such as maritalnames, where social conventions exert a strong influence on choices, and where desk-clerk law is likely to be erroneous or misleading. INTRODUCTION What laws should govern spouses' names at marriage? If a man and a woman marry, should the woman's name change automatically? Or should the woman's name remain the same unless she goes through more or less complicated steps to change it? Contrary to convention, should the man's name change to the woman's? Should both their names be hyphenated? Many variations could be imagined. The law of marital names has undergone a significant transforma- tion over the past forty years. For about a hundred years of U.S. his- tory, states required married women to take their husbands' names in order to engage in basic activities such as voting and driving. Now, because of a series of decisions made in the 1970s, married women may choose the names they bear. In the language of contract law, then, a mandatory regime has been replaced with a default regime. But the law continues to matter. A growing number of studies show that default rules affect the choices that parties make across widely varying domains, from organ donations to pension plans to cor- porate antitakeover measures. For instance, across these varied do- mains, defaults are often "sticky." That is, parties often choose whatever option is set as the default. Thus, even when private parties choose, the law shapes behavior by the way it frames those choices. Relatively little attention has been paid, however, to areas where social conventions strongly influence decisions. Marital names there- fore present an interesting case study, because the default rule here - Keeping-is not sticky for women. Although no longer required to do so, the majority of women take their husbands' names at marriage. This suggests that something other than law is largely driving behav- ior, at least for women. So what role is law playing, and what role should it play? One contention of this Article is that the law of marital names should try to encourage egalitarian choices-meaning choices that favor neither men nor women. Names are a highly