I just returned from an AALS Workshop on “Shifting Foundations in Family Law,” where Martha Ertman read from and presented the ideas in Love’s Promises: How Formal and Informal Contracts Shape All Kinds of Families. The reception was enthusiastic and admiring — exactly my reaction to her wonderful new book. Martha seamlessly blends memoir, case stories and legal analysis to create a compelling and provocative narrative that beautifully illustrates her central point — that love and contracts are not opposites, but complementary, and that exchanges — both big and small, formal and informal — create and sustain families, both the conventional type that she calls Plan A and the less common (but equally valuable) varities that she dubs Plan B.
One of the book’s most impressive features is its combination of personal memoir and legal analysis. Often seen as incompatible, particularly in the academic world, these two genres reinforce and enrich each other in Martha’s book. While Martha has described the snippets of memoir at the beginning of each chapter as the “sweet coating that makes the legal medicine easier to swallow,” the juxtaposition does much more than that. Although Martha may not have intended this, her decision to combine memoir with serious legal analysis is another example of how things sometimes thought of as incompatible not only co-exist, but enhance each other’s power. Small wonder that, after reading the first 30 pages of the book, my husband exclaimed that “This ought to be a movie!”
Martha’s legal analysis covers an immense amount of ground — touching on almost every area of family law. Given that breadth, and the fact that she is writing for both a lay and a legal audience, she does an impressive job of describing and explaining the law. Still, there are a few things that I wish the book had done more thoroughly or more convincingly. One is to delineate more clearly which type of family agreements she thinks the law should enforce as “contracts” and which types she thinks should remain mere “deals” — important to the parties who enter into them, but not giving rise to legally enforceable rights or remedies. For family law scholars, who largely already agree with Martha’s basic insight about the compatibility of love and contracts, this is the $64,000 question and Martha does not provide much help in answering it. For example, in some contexts (such as post-adoption contact agreements (PACA’s), she seems to suggest that the degree of formality should matter, while in others, (such as cohabitation contracts), she bemoans the law’s insistence on a writing as a prerequisite to enforceability. To be fair, family law academics probably are not Martha’s target audience, and she is justifiably more concerned with convincing a skeptical public that love and contracts are not opposites and that exchange plays an important role in creating and sustaining families. But for those who agree with her basic insight, Martha provides few markers to answer what she describes as the “big whoop” in contract law — drawing a line between the kinds of (family) promises that courts enforce and the ones they won’t. Read More