Martha M. Ertman

Exchange as a Cornerstone of Families

Martha M. Ertman — Tue, 07 Feb 2012 13:25:59 PST

This essay up-ends critical theorist Ivan Illich’s critique of economic thinking as replacing households defined by vernacular gender with married pairs in “inhumane” sex-neutral economic partnerships. It challenges Illich’s view of exchange as a destroyer that has meddled in families for only a few hundred years, citing sociobiological literature to counter his case against exchange with one valorizing two exchanges that I call “primal deals” that played crucial roles in the evolution of humans, families, and day-to-day life. These primal deals—especially the primal pair-bonding deal between men and women—continue to play a central role in families and family law today. The essay concludes by using four family law cases to demonstrate the primal deal’s continuing role today, and proposing a doctrinal change to recognize that prenuptial agreements limiting property sharing effectively cancel the primal deal between spouses. Accordingly, courts enforcing prenups should compensate the spouses who gave up property sharing rights in the prenups for the hours, months and years they spent making and sustaining the home and family. Contrary to Illitch’s assertion that exchange-views of families harm women with shadow work and second class citizenship, this change shows how recognizing the entire exchange – masculine and feminine elements – can help women get compensated for that shadow work, which would take it out of the shadows.

Rethinking Commodification: Cases and Readings in Law and Culture

Martha M. Ertman et al. — Tue, 08 Nov 2011 06:42:22 PST

What is the price of a limb? A child? Ethnicity? Love? In a world that is often ruled by buyers and sellers, those things that are often considered priceless become objects to be marketed and from which to earn a profit. Ranging from black market babies to exploitative sex trade operations to the marketing of race and culture, Rethinking Commodification presents an interdisciplinary collection of writings, including legal theory, case law, and original essays to reexamine the traditional legal question: ̶To commodify or not to commodify?”

In this pathbreaking course reader, Martha M. Ertman and Joan C. Williams present the legal cases and theories that laid the groundwork for traditional critiques of commodification, which tend to view the process as dehumanizing because it reduces all human interactions to economic transactions. This “canonical” section is followed by a selection of original essays that present alternative views of commodification based on the concept that commodification can have diverse meanings in a variety of social contexts. When viewed in this way, the commodification debate moves beyond whether or not commodification is good or bad, and is assessed instead on the quality of the social relationships and wider context that is involved in the transaction. Rethinking Commodification contains an excellent array of contemporary issues, including intellectual property, reparations for slavery, organ transplants, and sex work; and an equally stellar array of contributors, including Richard Posner, Margaret Jane Radin, Regina Austin, and many others.

The ALI Principles' Approach to Domestic Partnership

Martha M. Ertman — Mon, 23 Aug 2010 11:40:15 PDT

Marriage as a Trade: Bridging the Private/Private Distinction

Martha M. Ertman — Tue, 17 Aug 2010 12:31:19 PDT

The Upside of Baby Markets

Martha M. Ertman — Wed, 21 Apr 2010 09:12:06 PDT

Few think there is an upside to baby markets. This chapter challenges conventional wisdom by suggesting that marketizing parenthood through the sale of gametes and other reproductive technologies facilitates family formation by single and gay people. After briefly reviewing literature, it defends commercialization of human eggs and sperm and applies those defenses to embryo markets.

The Productive Tension between Official and Unofficial Stories of Fault in Contract Law

Martha M. Ertman — Wed, 20 Jan 2010 05:04:00 PST

Officially Contract law ignores fault. However, an unofficial story complements the official one, and explains why fault occasionally slips into contract law through doctrines such as willful breach. This chapter of FAULT IN AMERICAN CONTRACT LAW (Omri Ben-Shahar & Ariel Porot, eds, Cambridge U. Press, forthcoming 2010) argues that the official and unofficial stories operate in productive tension to both facilitate ex ante planning and, when necessary, look backward at reasons for breach to reach a just result. The occasional presence of fault in contract law, in this view, represents merely one more instance of the common doctrinal pattern of general rules tempered by exceptions.

For Both Love and Money: Viviana Zelizer's "The Purchase of Intimacy"

Martha M. Ertman — Thu, 03 Dec 2009 11:58:59 PST

Viviana Zelizer’s recent book, The Purchase of Intimacy (2005) presents an innovative theory of how social and legal actors negotiate rights and obligations when money changes hands in intimate relationships--a perspective that could change how we understand many things, from valuations of homemaking labor to the 9/11 Victim Compensation Fund. This essay describes Zelizer’s critique of the reductionist “Hostile Worlds” and “Nothing But” approaches to economic exchange in intimate relationships, then explains her more three-dimensional approach, “Connected Lives.” While Zelizer focuses on family law, the essay goes beyond that context, extending Zelizer’s approach to transfers of genetic material, and concluding that her approach could point toward a more equitable resolution of disputes in and about these markets.

Race Treason: The Untold Story of America's Ban on Polygamy

Martha M. Ertman — Tue, 17 Mar 2009 05:19:20 PDT

Legal doctrines banning polygamy grew out of nineteenth century Americans’ view that Mormons betrayed the nation by engaging in conduct associated with people of color. This article reveals the racial underpinnings of polygamy law by examining cartoons and other antipolygamy rhetoric of the time to demonstrate Sir Henry Maine’s famous observation that the move in progressive societies is “from status to contract.” It frames antipolygamists’ contentions as a visceral defense of racial and sexual status in the face of encroaching contractual thinking. Polygamy, they reasoned, was “natural” for people of color but so “unnatural” for whites as to produce a new, degenerate race, licentious and submissive to despotism. The article suggests that the tension between status and contract, together with anthropologist Edward Said’s concept of Orientalism, bridge the seemingly separate issues of Mormon polygamy and racial inferiority. In particular, Orientalism explains how the nation deprived overwhelmingly white Mormons of citizenship rights such as voting on grounds of racial inferiority. It concludes by paralleling the status-based, white supremacist rejection of polygamy and today’s arguments against same-sex marriage.

Oscar Wilde: Paradoxical Poster Child for Both Identify and Post-Identify

Martha M. Ertman — Tue, 11 Nov 2008 10:25:46 PST

Private Ordering under the ALI Principles: As Natural as Status

Martha M. Ertman — Mon, 20 Oct 2008 10:33:16 PDT

Marriage Markets

Martha M. Ertman — Fri, 19 Sep 2008 11:18:41 PDT

Contractual Purgatory for Sexual Marginorities: Not Heaven, but Not Hell Either

Martha M. Ertman — Fri, 19 Sep 2008 11:18:38 PDT

Changing the Meaning of Motherhood

Martha M. Ertman — Fri, 19 Sep 2008 11:18:32 PDT

The Story of Reynolds v. United States: Federal "Hell Hounds" Punishing Mormon Treason

Martha M. Ertman — Fri, 19 Sep 2008 11:18:28 PDT

Part of the “Law Stories” series published by Foundation Press, this chapter in Family Law Stories tells the back story of the 1878 US Supreme Court case Reynolds v. U.S.. While the case held that Mormon polygamy was not protected as the free exercise of religion, this chapter shifts our focus away from sex and religion and toward the Court’s language linking Mormon polygamy with “Asiatic and African” peoples as well as political despotism. This close examination of the historical record shows that 19th century concerns about Mormon separatism – commercial, social and political separatism as well was religious – were as important, or even more so, than plural marriage itself. To make its case that antipolygamists of the day viewed Mormon polygamy as both politically and culturally treasonous, the chapter describes George Reynolds’ career, marriages, and imprisonment, including how his life-long devotion to the Mormon Church led to him to be the defendant in this test case. In conclusion, this chapter suggests that Reynolds reliance on political claims of treason (as well as white supremacist views of Mormon polygamy as race treason) may limit the precedential value of the case. In particular, if Reynolds is really about Mormon’s treasonous establishment of a separatist theocracy, it has little applicability to current discussions of same sex marriage since same sex marriage is an assimilationist project.

Reconstructing Marriage: An InterSEXional Approach

Martha M. Ertman — Fri, 19 Sep 2008 11:18:25 PDT

Vive no Différence

Martha M. Ertman — Fri, 19 Sep 2008 11:18:23 PDT

Denying the Secret of Joy: A Critique of Posner's Theory of Sexuality

Martha M. Ertman — Fri, 19 Sep 2008 11:18:20 PDT

Mapping the New Frontiers of Private Ordering: Afterword

Martha M. Ertman — Fri, 19 Sep 2008 11:18:16 PDT

Defining the limits of contract is an important project in contemporary contracts scholarship. Professor Ertman’s Afterword to the University of Arizona symposium on Mapping the Frontiers of Private Ordering situates the symposium papers within a larger positive and normative discourse. Suggesting that “private ordering” better describes the current reach of contractual thinking, she contends that, the symposium papers depart from conventional wisdom by examining the upside of private ordering for have-nots. While some of the contributions warn of dangers to employees and other systemically disadvantaged parties from full throttle contractualization, even the protections by the most skeptical scholar fall comfortably within contractual thinking.

Commercializing Marriage: A Proposal for Valuing Women's Work Through Premarital Security Agreements

Martha M. Ertman — Fri, 19 Sep 2008 11:18:13 PDT

Unbending Gender: Why Family and Work Conflict and What To Do About It

Martha M. Ertman — Fri, 19 Sep 2008 11:18:10 PDT