From: kevin@rotag.mi.org (Kevin Darcy)
Subject: Re: Equal Male Rights
Organization: Who, me???
Date: Sat, 15 Aug 1992 19:47:54 GMT

In article <1992Aug14.130727.5069@midway.uchicago.edu> thf2@midway.uchicago.edu writes:
>In article <1992Aug14.072830.4999@rotag.mi.org> kevin@rotag.mi.org (Kevin Darcy) writes:
>>In article <1992Aug12.011741.28510@midway.uchicago.edu> thf2@midway.uchicago.edu writes:
>>>In article <1992Aug8.015920.18753@cfctech.cfc.com> kevin@cfctech.cfc.com (Kevin Darcy) writes:
>>>>Scrap the paternity statutes, and adapt regular tort or contract principles 
>>>>for deciding paternity child support liability. 
>>>
>>>Ummm, regular tort or contract principles support the current system.
>>>Perhaps you're thinking of something else.
>>
>>Or, then again, perhaps you're just trying to be smug...
>>
>>If regular contract principles apply, why aren't child-support contracts
>>legal, without some special Squeal of Approval from the judge who decides
>>custody?
>
>Because regular contract principles would never hold such a contract to be
>enforceable.  

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?

>>If regular tort principles apply, why can't a woman who fails to abort 
>>after having defrauded and/or misled the man vis-a-vis contraceptive 
>>protection be sued for having violated her duty of care, and ordered to 
>>reimburse him penny-for-penny for his statutory child-support liability,
>>and maybe punitive damages besides?
>
>Because under regular tort principles, the woman owes no duty to the man
>in this regard, and thus has no duty of care to violate.

Are you implying that the woman's duty of care does NOT extend to refraining
from fraud and/or deceit? Surely _intentional_ acts to another's detriment are 
more odious and more tortious than simple negligence (?) 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...

>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. Nor do I think that, in the case of torts at least, you can show that
even more MODERN interpretations would favor the status quo either. From the
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), 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.

								- Kevin
Xref: sparky misc.legal:16182 talk.politics.misc:40755