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84 Va. L. Rev. 1225 (1998)
Marriage as Relational Contract

handle is hein.journals/valr84 and id is 1235 raw text is: VIRGINIA LAW REVIEW VOLUME 84 OCTOBER 1998 NUMBER7 ARTICLE MARRIAGE AS RELATIONAL CONTRACT Elizabeth S. Scott* and Robert E. Scott** INTRODUCTION ................................................................................. 1226 I. RETHINKING THE PROGRESSION FROM STATUS TO CONTRACT ................................................................................ 1233 A. Private Ordering and the Legal Regulation of M odern M arriage ..................................................................... 1234 B. The Critique of the Regulation of Modern Marriage ........... 1237 1. Marriage as Contract and the Character of Marriage ........ 1238 2. Marriage as Contract and the Role of Law (and Fault) .... 1239 3. Private Ordering in Marriage and the Welfare of W omen and Children ............................................................ 1242 C. Rethinking the Meaning of Marriage as Contract ................ 1244 II. A MODEL OF MARRIAGE AS A RELATIONAL CONTRACT ....... 1250 A. Basic Assumptions: The Parameters of the Marriage C ontract .................................................................................... 1251 B. Why Marry? ......................... ............. 1254 1. The Goals and Expectations for Marriage .......................... 1254 University Professor and Robert C. Taylor Research Professor, University of Vir- ginia School of Law. Dean and Lewis F. Powell Jr. Professor of Law, University of Virginia School of Law. We are grateful to many people for comments on an earlier draft: Jim Bowers, Peg Brinig, Frank Buckley, Mary Anne Case, Gillian Hadfield, Saul Levmore, Eric Pos- ner, John Setear, Jana Singer, Jeff Stake, Bill Stuntz, Michael Trebilcock, George Triantis, and Amy Wax. We also thank participants in a Donner Foundation Confer- ence on the Revitalization of Contract at George Mason University School of Law and a workshop at the University of Virginia School of Law. Finally, we thank Galina Kolomietz for outstanding research assistance. 1225

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