Sex and the business association

Larry Ribstein —  11 December 2011

Should domestic relationships be modeled on corporations, partnerships or other business associations?  This idea may seem attractive.  As I have argued, both business and family relationships can be viewed as standard forms, which are useful for filling gaps in long-term contractual relationships.  Borrowing contract-type thinking from business associations also could help break through the norm-driven rigidity of family law.  Thus, I have argued (here, and in Chapter 8 of The Law Market) for using business associations as a model for a choice-of-law approach to same sex marriage.

My writing got me an invitation to the very interesting “Love or Money” conference at Washington University, which explored “the false dichotomy in life and law between activities initiated for affective reasons, such as love or altruistic impulses, and those undertaken for profit.” 

But I probably disappointed the organizers by insisting on some “dichotomy” — that is, a separation between the statutory standard forms used for “love” (intimate relationships) and for “money” (business associations).  My point is that merging the two, while it may have political advantages, could muddy both legal areas.  This is based on my theory of the functions of these standard forms articulated in several papers, and most completely in my book, Rise of the Uncorporation

My paper from that long-ago conference, Incorporating the Hendricksons, has finally been published.  (Of course the title refers to much missed Big Love). Here’s the abstract:

The family is evolving rapidly, but not fast enough for some people. Several commentators suggest freeing family law of its traditional constraints by applying the contractual business association model. Business models, though superficially similar to domestic relationships, ultimately are unhelpful or counter-productive to defining the family. This Article discusses the essential differences between business and domestic partnerships and the potential havoc from trying to merge the two.

One nice result of the conference and paper is that I finally got to use this title for a blog post.

Larry Ribstein

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Professor of Law, University of Illinois College of Law