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For the Love of Contract Tulsa Law Review Volume 51 Issue 2 Spring 2016 For the Love of Contract Zvi H. Triger Haim Striks School of Law Follow this and additional works at: https://digitalcommons.law.utulsa.edu/tlr Part of the Law Commons Recommended Citation Zvi H. Triger, For the Love of Contract, 51 Tulsa L. Rev. 407 (2016). Available at: https://digitalcommons.law.utulsa.edu/tlr/vol51/iss2/16 This Book Review is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact [email protected]. Triger: For the Love of Contract 3/13/1611:15 PM FOR THE LOVE OF CONTRACT * Zvi H. Triger MARTHA M. ERTMAN, LOVE’S PROMISES: HOW FORMAL AND INFORMAL CONTRACTS SHAPE ALL KINDS OF FAMILIES (BEACON PRESS 2015). PP. 280. HARDCOVER $ 26.95. I. INTRODUCTION Martha Ertman’s new book, Love’s Promises: How Formal and Informal Contracts Shape All Kinds of Families, explores the role of contracts within the family.1 It shows that contracts shape today’s families and argues that family law should acknowledge that and recognize such contracts. This review essay addresses the dramatic paradigm shifts that have been occurring in contract law and family law in the last decades as a response to technological developments and to people’s resourcefulness, which enable them to reimagine the family and create new forms of families. It presents and analyzes those shifts within their historical and socio-legal contexts. Part II of this essay presents the book’s terminology, and its main arguments. Dis- tinguishing between plan A and plan B families, and between contracts and deals, Ertman urges readers—whether members of plan B families, lawyers, judges, policymakers or others—to reimagine family law and redesign it so that it better protects families and their members. Part III discusses Ertman’s use of contracts within families against the backdrop of classical contract theory and its aversion to all things domestic. It explores the notion that housework has been considered, in Western thought, as a gift, and that love and contracts have been construed as mutually exclusive. Part IV argues that Ertman’s book should encourage us to think of Families’ Laws instead of Family Law, because there is no such thing as a single family model. The law should acknowledge the diversity of family models instead of tailoring itself to a single “Reasonable Family” model, as it has been doing since its early days. * Associate Professor of Law, The Haim Striks School of Law, The College of Management, Rishon Le Zion, Israel. I am grateful to Linda McClain for her insightful comments and suggestions. 1. MARTHA M. ERTMAN, LOVE’S PROMISES: HOW FORMAL AND INFORMAL CONTRACTS SHAPE ALL KINDS OF FAMILIES (2015). 407 Published by TU Law Digital Commons, 2015 1 Tulsa Law Review, Vol. 51 [2015], Iss. 2, Art. 16 TRIGER_3.13.16 (DO NOT DELETE) 3/13/16 11:15 PM 408 TULSA LAW REVIEW [Vol. 51:407 Part V discusses the book’s methodology, and in particular its use of memoir and more traditional academic scholarship, and assesses its unique contribution. II. RECOGNIZING PLAN B FAMILIES: THE BOOK’S MAIN THEMES AND ARGUMENTS Love’s Promises focuses on what Ertman calls “Plan B families,”2 by contrast to “Plan A families,” that is the more traditional (and common) family, comprised of a mother and a father who are married to each other, and children that are genetically related to both of them. The term “Plan B families,” Ertman writes, “covers a wide variety of uncommon families, from repro tech [assisted reproductive technology] and adoption to cohabita- tion.”3 Under this umbrella she includes same-sex couples (whether married or not), single parents, and families with more than two parents (like Ertman’s own family). The new language that this book suggests—Plan A/Plan B—is designed to help us think about uncommon families as exceptions to the gen- eral rule instead of unnatural or inferior. “Plan A” is what’s common: more than nine out of ten kids are raised by their genetic parents, marriage is the most common family form, and most people are straight. But “common” is not the same as better. When someone veers toward the road less traveled, I call it “Plan B.”4 Another key distinction this book utilizes is the one between contracts, which are agreements that courts enforce, and deals, which are agreements that are binding, but are legally unenforceable.5 Deals are what social relations are based upon on an everyday basis, but they are “just too small or vague to bring before a judge when they are breached[,]”6 and people do not expect to sue or be sued over breaches related to deals. “I pay the bills and you do the grocery shopping”7 is an example of an everyday deal between partners, roommates, or spouses. But we also make deals with friends (we share class notes if one of us is sick and cannot make it to class), and see them as binding, although not legally. That means if my classmate refuses to share her contracts notes with me from the class I had missed because I was lying sick in bed that day, despite our pact to cover for each other when we cannot come to class, I will not sue her (unless I am completely devoid of any social skills), but will consider myself exempt from sharing my own notes if she ever has to miss class. This is how deals work—the enforcement mechanism is social, not legal. Social norms such as mutuality and trust, rather than the law, make deals meaningful and binding. 2. Id. at xiv. 3. Id. 4. Id. 5. Id. at xii-xiii. 6. ERTMAN, supra note 1, at xiii. 7. Id. https://digitalcommons.law.utulsa.edu/tlr/vol51/iss2/16 2 Triger: For the Love of Contract TRIGER_3.13.16 (DO NOT DELETE) 3/13/16 11:15 PM 2016] FOR THE LOVE OF CONTRACT 409 The main argument of the book is that families of all types are shaped by both con- tracts and deals, that contracts help create and maintain families, and that they are espe- cially important for Plan B families.8 As Ertman writes, “[c]ontracts and deals allowed me to become one of three parents—all gay—raising a beloved boy named Walter.”9 Moreover, contracts, if properly thought out and drafted, can also help in the unfor- tunate situations of break ups, and assist the parties in avoiding damaging and acrimonious legal disputes. Ertman calls those clauses for rainy days “jerk insurance” clauses.10 They are known also as “Ulysses contracts” among behavioral economists.11 As Ertman ex- plains, “a Ulysses contract strikes a deal between your present self and your future self, binding your future self not to do something stupid or self-destructive.”12 Similarly, a “jerk insurance” clause, such as an inconvenient and costly choice of law clause in the contract, makes it so cumbersome to litigate conflicts that the parties will be likely to choose a more collaborative way to resolve any issues that arise between them.13 This leads to the other important theme explored in the book: the connection between contracts and love, which will be discussed in Part II of this essay. Ertman’s argument joins a long strand of feminist scholarship of contract law that has rejected the classical view of contracts and love as mutually exclusive.14 As I mentioned above, Ertman shows how contracts can secure love and be the product of love (the “jerk insurance” clause being one of the means to remind the fighting parties of the love that leads them to sign the contract and make the deals in the first place).15 There are two aspects of the family that are explored in the book, and it is organized around them: Part I (chapters 2-5) explores Plan B parenthood, and Part II (chapters 6-9) discusses Plan B partnership. Both parts show how diverse families are (in Ertman’s own words, “love comes in different packages”),16 and therefore how important it is to release family law from its fixation on one model, namely the marital heterosexual model, or the Plan A model. Family law is increasingly recognizing that,17 but it has much more to offer in terms of accommodating and promoting Plan B families. The book’s goal is, among other things, to unleash law’s full potential in this regard. Plan B parenthood is achieved either by technological (reproductive technologies) or legal (adoption) means. Both ways are alternatives to the sexual relations between hus- band and wife, which create Plan A parenthood. Plan B parenthood is varied: from heter- osexual couples who cannot conceive, to LGBT and single women who need gamete do- nations, and gay men who also need gestational surrogacy in order to become fathers. All these forms require contracts: between the intended parents (if they are more than one); 8. Id. at xi-xii. 9. Id. at xv. 10. Id. at 167. 11. ERTMAN, supra note 1, at 167. 12. Id. See also IAN AYRES, CARROTS AND STICKS 15 (2010). 13. ERTMAN, supra note 1, at 167. 14. See infra Part II. 15. ERTMAN, supra note 1, at 167. 16. Id. at 109. 17. Id. Published by TU Law Digital Commons, 2015 3 Tulsa Law Review, Vol. 51 [2015], Iss. 2, Art. 16 TRIGER_3.13.16 (DO NOT DELETE) 3/13/16 11:15 PM 410 TULSA LAW REVIEW [Vol.
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