Contracts | Law | Law and Gender
Center for Gender & Sexuality Law
Center for Contract and Economic Organization
What laws should govern spouses' names at marriage? If a man and a woman marry, should the woman's name change automatically? Or should the woman's name remain the same unless she goes through more or less complicated steps to change it? Contrary to convention, should the man's name change to the woman's? Should both their names be hyphenated? Many variations could be imagined.
The law of marital names has undergone a significant transformation over the past forty years. For about a hundred years of U.S. history, states required married women to take their husbands' names in order to engage in basic activities such as voting and driving. Now, because of a series of decisions made in the 1970s, married women may choose the names they bear. In the language of contract law, then, a mandatory regime has been replaced with a default regime.
But the law continues to matter. A growing number of studies show that default rules affect the choices that parties make across widely varying domains, from organ donations to pension plans to corporate antitakeover measures. For instance, across these varied domains, defaults are often "sticky." That is, parties often choose whatever option is set as the default. Thus, even when private parties choose, the law shapes behavior by the way it frames those choices.
Relatively little attention has been paid, however, to areas where social conventions strongly influence decisions. Marital names therefore present an interesting case study, because the default rule here – Keeping – is not sticky for women. Although no longer required to do so, the majority of women take their husbands' names at marriage. This suggests that something other than law is largely driving behavior, at least for women. So what role is law playing, and what role should it play?
One contention of this Article is that the law of marital names should try to encourage egalitarian choices – meaning choices that favor neither men nor women. Names are a highly personal matter, arguably constitutive of our selves. For this reason, names should generally be a matter of choice, and this Article does not even entertain proposals for mandatory naming regimes.
Elizabeth F. Emens,
Changing Name Changing: Framing Rules and the Future of Marital Names,
U. Chi. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/277