Regulatory Fictions: On Marriage and Countermarriage Reply

I’ve been waiting to read a recent article I discovered in the California Law Review by Columbia law professor Elizabeth F. Emens titled “Regulatory Fictions: On Marriage and Countermarriage”–the abstract follows:

Debates about marriage currently capture much public attention. Scholars have pushed beyond the question of whether gays are worthy of marriage to ask whether marriage is worthy of gays. The present moment of questioning marriage in its current form may be brief. Thus, we should take this opportunity to imagine the widest possible range of alternatives to our current marriage regime—what I call countermarriage regimes. This Essay draws on two unlikely sources of legal innovation to expand our thinking about marriage alternatives: literature and anti-gay law. Literature offers an array of countermarriage regimes, including exploding marriage, threestrikes marriage, line marriage, renewable marriage, and exculpatory marriage. Anti-gay law, if we reimagine it as applying to everyone, prompts us to consider a world without marriage or indeed without any contracts between intimate partners. In addition to opening our minds to countermarriage possibilities, this Essay shows some overlooked affinities between law and literature, in particular how both law and literature may serve as unlikely sources of regulatory innovation.

(I particularly like the irony as using laws banning same-sex marriage as a way to imagine a world without marriage at all.) This promises to be a very interesting piece, and I’d be very interested to hear what others think about it.

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