Center for Contract and Economic Organization
Center for Gender & Sexuality Law
Marital names shape our ideas about marriage, about our children, and about our selves. For about a hundred years, American states required married women to take their husbands' names in order to engage in basic civic activities such as voting. While the law no longer requires women to change their names, it still shapes people's decisions about marital names in both formal and informal ways.
For example, the formal legal default rule in most places is that both spouses keep their premarital names. This rule is minoritarian for women, which means it imposes a range of social costs on women who make the most conventional naming choice. But the rule is majoritarian for men, which means it does nothing to unsettle the most robust aspect of our current marital naming conventions – the fact that men almost never change their names, even to hyphenate. This fact about men's names – coupled with the fact that children almost always have their father's name, even if their mother makes an unconventional naming choice for herself – means that women are ostensibly choosing their marital names, but in fact they are choosing from a very limited decision set. That is, women effectively can have nominal continuity either with their past (their families of origin and premarital selves) or with their future (their children and possibly their spouse), but not across all three generations. The formal legal default that both spouses keep their names reinforces this bind for women.
Informally, legal institutions also shape choices through desk-clerk law, that is, advice given by the government functionaries who answer public inquiries at state and local agencies. These legal actors frequently mislead people and discourage unconventional naming choices as a result of ignorance or their own views about proper practice.
Because states historically reinforced a regime of patrilineal descent of names, what might seem a neutral default regime is inadequate. States should set defaults and frame choices to encourage more egalitarian decisions about whether to change names and how. States could try any number of creative solutions using existing categories for thinking about choice regimes, drawn from contract-law theory: default rules (what rule the state fills in if the parties don't speak to the contrary); menus (what range of options parties are given); and altering rules (what steps parties must take to contract around the default rule into different alternatives). Most modestly, states could adopt a forced choosing approach, requiring both spouses to state their postmarital names. More ambitiously, states might encourage hyphenation and, at the next generation, biphenation – defined as the passing of one name from each hyphenated parent – by making this the default option.
States could also create what might be called framing rules, which would dictate how the state asks the question of parties in a choice regime. Framing rules encompass what information the state gives parties, what words it uses, what context surrounds the question, as well as the timing of the question. Framing rules are particularly important in contexts, such as marital names, where social conventions exert a strong influence on choices, and where desk-clerk law is likely to be erroneous or misleading.
Elizabeth F. Emens,
Changing Name Changing: Framing Rules and the Future of Marital Names,
University of Chicago Law Review, Vol. 74, p. 761, 2007
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1431