From: thf2@ellis.uchicago.edu (Ted Frank)
Subject: Re: Equal Male Rights
Followup-To: misc.legal
Reply-To: thf2@midway.uchicago.edu
Organization: University of Chicago Computing Organizations
Date: Fri, 21 Aug 1992 04:53:39 GMT

In article <1992Aug15.194754.8446@rotag.mi.org> kevin@rotag.mi.org (Kevin Darcy) writes:
>Why not? If the parties are competent, the minds meet, the obligation is
>mutual, etc. why is there no enforceable contract? You have waved your hands 
>in the air and whined "it's not enforceable", but you haven't revealed even 
>one iota of the alleged reasoning behind that conclusion. Not very rigorous, 
>Ted. Do you write your briefs like this?

I'll write brief-quality posts when I get paid as much for writing posts
as I do for writing briefs.  The qualifications you mention (competence,
meeting of the minds, mutual obligation) are not sufficient to form
an enforceable obligation (and in the case of mutual obligation, not even
necessary).  You're the one with the burden of proof here.  Demonstrate
regular contract principles.  Do you have *any* analagous situations from
the common law?  On the other hand, there are cases from the common law
where the man tried to contract out of legal obligations to his female
companion and the courts wouldn't enforce them.  See, for example, McCoy
v Flynn, 169 Iowa 622 (1915); Estate of Duncan, 87 Colo. 149 (1930).  
Allowances for prenuptial agreements are a modern shift.  The main
reason courts didn't used to uniformly enforce paternity suits is because,
until recently, proof of paternity was near impossible.

As for the potential of unconscionability, even in prenuptial agreements,
see Newman v Newman, 653 P2d 728 (Colo 1982) (reversing Duncan in part,
but still valid in our context).

Your turn.  Do your own research instead of asking me to do it for you.
I suggest you start with Volumes 14 and 15 of Williston's treatise, or
volume 6A in Corbin's if you're truly interested in unenforceability.
Or see $193 of the Second Restatement of Contracts on whether one can
contract out of a fiduciary duty to a third party.  Or $583 in the First
Restatement, published sixty years ago.

>At the very least, we
>can say that she is barred by the Unclean Hands doctrine from subsequently
>asking for a support award on behalf of the child...

Read your own line there.  You answered your own question: "on behalf of."
It's the child that's suing, and the child has clean hands.

>>Face it, what you want has nothing to do with "regular" contract or tort
>>principles.  You're asking for special exceptions from them.
>
>You have yet to demonstrate that traditional tort and contract principles fail 
>to apply. 

Ok, now I have.  I expect all of your future posts to exhibit the same
degree of research.  Or for you to stop posting until you know what you're
talking about.

>economic standpoint, for instance, I doubt that Posner _or_ Calabresi would go 
>along with the status quo -- Posner because the current situation inhibits the 
>exercise of the most economically-efficient choices (i.e. encourages women to 
>carry illegitimate children to term), 

Perhaps you should read what Posner actually says on the subject rather
than putting words in his mouth, given that he's published two books within
the last year that deal with the subject.

>and Calabresi because the paternity 
>liability imposed, although strict, is not being levied against the cheaper 
>cost-avoider (the "cost" for the man to obtain an abortion of the child against
>the woman's wishes is effectively infinite, in that it is a legal 
>impossibility). The laws are a repugnant travesty no matter how one looks at 
>them.

Your misunderstanding of Calabresi is unsurprising given your misunderstanding
of tort and contracts.  But far better to come to a conclusion first, and
then use Procrustean argumentation to make real legal principles "fit" to
your conclusion.
-- 
             ......................................................
             ted frank | thf2@midway.uchicago.edu | std disclaimers
             the university of chicago law skool, chicago, illinois
             you can't throw me to the lions -- i'm charlton heston
Newsgroups: alt.abortion.inequity