Rules of Engagement

Yale Law Journal

Volumn 107, Issue 8, 1998, Pages 2583-2618

  Tushnet, Rebecca ^a  

^a NONE

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EID: 0346835982     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797351     Document Type: Article

References (258)

1. See Andy Geller, Mogul Gets His Rock Back but Model Keeps Rest of "Candy," N.Y. POST, Dec. 17, 1997, at 4.
2. See N.Y. CIV. RIGHTS LAW § 80-b (McKinney 1992); Equal Time (CNBC television broadcast, Dec. 17, 1997), transcript available in LEXIS, News Library, Curnws File.
3. For example, a man may decide not to marry at all because an easily terminable marriage would put more burdens on him than a nonmarital relationship, without conferring sufficient emotional or material benefits to justify the costs. See, e.g., Margaret F. Brinig & Steven M. Crafton, Marriage and Opportunism, 23 J. LEGAL STUD. 869 (1994) (discussing the possible effects of divorce law on premarital decisions).
4. See, e.g., Symposium, Divorce and Feminist Legal Theory, 82 GEO. L.J. 2119 (1994) (discussing the law's effects on behavior during and after marriage).
5. See, e.g., Joyce Davis, Enhanced Earning Capacity/Human Capital: The Reluctance To Call It Property, 17 WOMEN'S RTS. L. REP. 109, 130-35 (1996) (criticizing the "clean break" theory); Twila L. Perry, No-Fault Divorce and Liability Without Fault: Can Family Law Learn from Torts?, 52 OHIO ST. L.J. 55, 84-88 (1991) (same); Milton C. Regan, Jr., Spouses and Strangers: Divorce Obligations and Property Rhetoric, 82 GEO. L.J. 2303 (1994) (same).
6. See, e.g., Joyce Davis, Enhanced Earning Capacity/Human Capital: The Reluctance To Call It Property, 17 WOMEN'S RTS. L. REP. 109, 130-35 (1996) (criticizing the "clean break" theory); Twila L. Perry, No-Fault Divorce and Liability Without Fault: Can Family Law Learn from Torts?, 52 OHIO ST. L.J. 55, 84-88 (1991) (same); Milton C. Regan, Jr., Spouses and Strangers: Divorce Obligations and Property Rhetoric, 82 GEO. L.J. 2303 (1994) (same).
7. See, e.g., Joyce Davis, Enhanced Earning Capacity/Human Capital: The Reluctance To Call It Property, 17 WOMEN'S RTS. L. REP. 109, 130-35 (1996) (criticizing the "clean break" theory); Twila L. Perry, No-Fault Divorce and Liability Without Fault: Can Family Law Learn from Torts?, 52 OHIO ST. L.J. 55, 84-88 (1991) (same); Milton C. Regan, Jr., Spouses and Strangers: Divorce Obligations and Property Rhetoric, 82 GEO. L.J. 2303 (1994) (same).
8. Family law scholars have recognized that even with no-fault, there is a range of possible property division regimes. Current debates in family law take no-fault as their starting point, whether to refine the concept or to criticize it, but even those who accept the concept may not agree on what it should entail. Some critics argue that marriage-specific investments in childcare and homemaking should be compensated as lost economic opportunities when the marriage ends. See, e.g., Perry, supra note 5, at 84-88. Such proposals accept no-fault, but they define what is to be distributed at divorce differently from the early no-fault regimes. In premarital family law, by contrast, no-fault has been assumed to counsel only one method of property division - mandatory return of engagement gifts -without further discussion of possible no-fault alternatives. See infra Subsection II.A.2. The study of premarital law is also illuminating for two other reasons. First, the legal regulation of premarital relationships rarely involves children, whose independent interests can complicate the analysis of what would otherwise be a purely voluntary relationship between two adults. Second, when there has been no marriage, there is no property acquired during the marriage to distribute, and complex questions of valuation and contribution are therefore absent. These factors might seem to make the law of broken engagements simple because only fairly uncomplicated relationships need to be addressed. Yet this apparent simplicity does not aid the resolution of premarital claims as much as one might believe. The legal standards applied to premarital cases still rest on complex judgments about the meaning of "no-fault" and the legitimate expectations with which people enter into intimate relationships.
9. See Mary Coombs, Agency and Partnership: A Study of Breach of Promise Plaintiffs, 2 YALE J.L. & FEMINISM 1, 4-11 (1989) (discussing the standard use of the breach-of-promise action by women).
10. See infra Part II.
11. See, e.g., Ira Mark Ellman, The Place of Fault in a Modern Divorce Law, 28 ARIZ. ST. L.J. 773, 777 (1996); Jana B. Singer, Divorce Reform and Gender Justice, 67 N.C. L. REV. 1103, 1119-20 (1989); cf. Barbara Bennett Woodhouse & Katharine T. Bartlett, Sex, Lies, and Dissipation: The Discourse of Fault in a No-Fault Era, 82 GEO. L.J. 2525, 2531 (1994) (suggesting that judges have a deep-seated need to consider fault).
12. See, e.g., Ira Mark Ellman, The Place of Fault in a Modern Divorce Law, 28 ARIZ. ST. L.J. 773, 777 (1996); Jana B. Singer, Divorce Reform and Gender Justice, 67 N.C. L. REV. 1103, 1119-20 (1989); cf. Barbara Bennett Woodhouse & Katharine T. Bartlett, Sex, Lies, and Dissipation: The Discourse of Fault in a No-Fault Era, 82 GEO. L.J. 2525, 2531 (1994) (suggesting that judges have a deep-seated need to consider fault).
13. See, e.g., Ira Mark Ellman, The Place of Fault in a Modern Divorce Law, 28 ARIZ. ST. L.J. 773, 777 (1996); Jana B. Singer, Divorce Reform and Gender Justice, 67 N.C. L. REV. 1103, 1119-20 (1989); cf. Barbara Bennett Woodhouse & Katharine T. Bartlett, Sex, Lies, and Dissipation: The Discourse of Fault in a No-Fault Era, 82 GEO. L.J. 2525, 2531 (1994) (suggesting that judges have a deep-seated need to consider fault).
14. See MICHAEL GROSSBERG, GOVERNING THE HEARTH: LAW AND THE FAMILY IN NINETEENTH-CENTURY AMERICA 33-38 (1985); cf. GINGER S. FROST, PROMISES BROKEN: COURTSHIP, CLASS, AND GENDER IN VICTORIAN ENGLAND 80-97 (1995) (describing the similar nature of English law during the 19th century).
15. See MICHAEL GROSSBERG, GOVERNING THE HEARTH: LAW AND THE FAMILY IN NINETEENTH-CENTURY AMERICA 33-38 (1985); cf. GINGER S. FROST, PROMISES BROKEN: COURTSHIP, CLASS, AND GENDER IN VICTORIAN ENGLAND 80-97 (1995) (describing the similar nature of English law during the 19th century).
16. See GROSSBERG, supra note 10, at 35-37.
17. See, e.g., Hahn v. Bettingen, 83 N.W. 467, 467 (Minn. 1900). Related actions included the torts of seduction, criminal conversation (adultery), and alienation of affections. See Nathan P. Feinsinger, Legislative Attack on "Heart Balm," 33 MICH. L. REV. 979, 986-96 (1935); Lea VanderVelde, The Legal Ways of Seduction, 48 STAN. L. REV. 817 (1996).
18. See, e.g., Hahn v. Bettingen, 83 N.W. 467, 467 (Minn. 1900). Related actions included the torts of seduction, criminal conversation (adultery), and alienation of affections. See Nathan P. Feinsinger, Legislative Attack on "Heart Balm," 33 MICH. L. REV. 979, 986-96 (1935); Lea VanderVelde, The Legal Ways of Seduction, 48 STAN. L. REV. 817 (1996).
19. See, e.g., Hahn v. Bettingen, 83 N.W. 467, 467 (Minn. 1900). Related actions included the torts of seduction, criminal conversation (adultery), and alienation of affections. See Nathan P. Feinsinger, Legislative Attack on "Heart Balm," 33 MICH. L. REV. 979, 986-96 (1935); Lea VanderVelde, The Legal Ways of Seduction, 48 STAN. L. REV. 817 (1996).
20. In 1935, Indiana became the first state to enact the reform proposals. See Act of Mar. 11, 1933, ch. 208, 1935 Ind. Acts 1009 (codified as amended at IND. CODE ANN. § 34-4-4-1 (Michie 1986)). Within a year six more states had joined Indiana, and by 1945 the total was 11. See M.B.W. Sinclair, Seduction and the Myth of the Ideal Woman, 5 LAW & INEQ. J. 33, 65 & nn.237-39 (1987). Antiheartbalm laws were proposed, but failed, in 15 other states during this period. See id. at 65 n.240. After the first wave of statutes was passed, heartbalm actions appear to have declined dramatically, even in states without antiheartbalm laws. Though it is difficult to ascertain the reason for this decline, it suggests that the same social transformation that made the antiheartbalm proponents' account of love and marriage appealing to legislatures made women less likely to bring suit in the first place. Juries' sympathy for the suits evidently declined as well, perhaps reflecting similar social changes. See Annotation, Excessiveness or Inadequacy of Damages for Alienation of Affections, Criminal Conversation, or Seduction, 36 A.L.R.2d 548, 548-49 (1954). At times during the ensuing decades, various states legislatively or judicially curtailed their heartbalm actions. See, e.g., Fundermann v. Mickelson, 304 N.W.2d 790 (Iowa 1981) (abolishing alienation of affections); Wyman v. Wallace, 615 P.2d 452 (Wash, 1980) (same). For examples of the kind of criticism that led to the reform, see Robert C. Brown, Breach of Promise Suits, 77 U. PA. L. REV. 474 (1929); Feinsinger, supra note 12; and Edwin W. Hadley, Breach of Promise To Marry, 2 NOTRE DAME LAW. 190 (1927).
21. In 1935, Indiana became the first state to enact the reform proposals. See Act of Mar. 11, 1933, ch. 208, 1935 Ind. Acts 1009 (codified as amended at IND. CODE ANN. § 34-4-4-1 (Michie 1986)). Within a year six more states had joined Indiana, and by 1945 the total was 11. See M.B.W. Sinclair, Seduction and the Myth of the Ideal Woman, 5 LAW & INEQ. J. 33, 65 & nn.237-39 (1987). Antiheartbalm laws were proposed, but failed, in 15 other states during this period. See id. at 65 n.240. After the first wave of statutes was passed, heartbalm actions appear to have declined dramatically, even in states without antiheartbalm laws. Though it is difficult to ascertain the reason for this decline, it suggests that the same social transformation that made the antiheartbalm proponents' account of love and marriage appealing to legislatures made women less likely to bring suit in the first place. Juries' sympathy for the suits evidently declined as well, perhaps reflecting similar social changes. See Annotation, Excessiveness or Inadequacy of Damages for Alienation of Affections, Criminal Conversation, or Seduction, 36 A.L.R.2d 548, 548-49 (1954). At times during the ensuing decades, various states legislatively or judicially curtailed their heartbalm actions. See, e.g., Fundermann v. Mickelson, 304 N.W.2d 790 (Iowa 1981) (abolishing alienation of affections); Wyman v. Wallace, 615 P.2d 452 (Wash, 1980) (same). For examples of the kind of criticism that led to the reform, see Robert C. Brown, Breach of Promise Suits, 77 U. PA. L. REV. 474 (1929); Feinsinger, supra note 12; and Edwin W. Hadley, Breach of Promise To Marry, 2 NOTRE DAME LAW. 190 (1927).
22. In 1935, Indiana became the first state to enact the reform proposals. See Act of Mar. 11, 1933, ch. 208, 1935 Ind. Acts 1009 (codified as amended at IND. CODE ANN. § 34-4-4-1 (Michie 1986)). Within a year six more states had joined Indiana, and by 1945 the total was 11. See M.B.W. Sinclair, Seduction and the Myth of the Ideal Woman, 5 LAW & INEQ. J. 33, 65 & nn.237-39 (1987). Antiheartbalm laws were proposed, but failed, in 15 other states during this period. See id. at 65 n.240. After the first wave of statutes was passed, heartbalm actions appear to have declined dramatically, even in states without antiheartbalm laws. Though it is difficult to ascertain the reason for this decline, it suggests that the same social transformation that made the antiheartbalm proponents' account of love and marriage appealing to legislatures made women less likely to bring suit in the first place. Juries' sympathy for the suits evidently declined as well, perhaps reflecting similar social changes. See Annotation, Excessiveness or Inadequacy of Damages for Alienation of Affections, Criminal Conversation, or Seduction, 36 A.L.R.2d 548, 548-49 (1954). At times during the ensuing decades, various states legislatively or judicially curtailed their heartbalm actions. See, e.g., Fundermann v. Mickelson, 304 N.W.2d 790 (Iowa 1981) (abolishing alienation of affections); Wyman v. Wallace, 615 P.2d 452 (Wash, 1980) (same). For examples of the kind of criticism that led to the reform, see Robert C. Brown, Breach of Promise Suits, 77 U. PA. L. REV. 474 (1929); Feinsinger, supra note 12; and Edwin W. Hadley, Breach of Promise To Marry, 2 NOTRE DAME LAW. 190 (1927).
23. In 1935, Indiana became the first state to enact the reform proposals. See Act of Mar. 11, 1933, ch. 208, 1935 Ind. Acts 1009 (codified as amended at IND. CODE ANN. § 34-4-4-1 (Michie 1986)). Within a year six more states had joined Indiana, and by 1945 the total was 11. See M.B.W. Sinclair, Seduction and the Myth of the Ideal Woman, 5 LAW & INEQ. J. 33, 65 & nn.237-39 (1987). Antiheartbalm laws were proposed, but failed, in 15 other states during this period. See id. at 65 n.240. After the first wave of statutes was passed, heartbalm actions appear to have declined dramatically, even in states without antiheartbalm laws. Though it is difficult to ascertain the reason for this decline, it suggests that the same social transformation that made the antiheartbalm proponents' account of love and marriage appealing to legislatures made women less likely to bring suit in the first place. Juries' sympathy for the suits evidently declined as well, perhaps reflecting similar social changes. See Annotation, Excessiveness or Inadequacy of Damages for Alienation of Affections, Criminal Conversation, or Seduction, 36 A.L.R.2d 548, 548-49 (1954). At times during the ensuing decades, various states legislatively or judicially curtailed their heartbalm actions. See, e.g., Fundermann v. Mickelson, 304 N.W.2d 790 (Iowa 1981) (abolishing alienation of affections); Wyman v. Wallace, 615 P.2d 452 (Wash, 1980) (same). For examples of the kind of criticism that led to the reform, see Robert C. Brown, Breach of Promise Suits, 77 U. PA. L. REV. 474 (1929); Feinsinger, supra note 12; and Edwin W. Hadley, Breach of Promise To Marry, 2 NOTRE DAME LAW. 190 (1927).
24. In 1935, Indiana became the first state to enact the reform proposals. See Act of Mar. 11, 1933, ch. 208, 1935 Ind. Acts 1009 (codified as amended at IND. CODE ANN. § 34-4-4-1 (Michie 1986)). Within a year six more states had joined Indiana, and by 1945 the total was 11. See M.B.W. Sinclair, Seduction and the Myth of the Ideal Woman, 5 LAW & INEQ. J. 33, 65 & nn.237-39 (1987). Antiheartbalm laws were proposed, but failed, in 15 other states during this period. See id. at 65 n.240. After the first wave of statutes was passed, heartbalm actions appear to have declined dramatically, even in states without antiheartbalm laws. Though it is difficult to ascertain the reason for this decline, it suggests that the same social transformation that made the antiheartbalm proponents' account of love and marriage appealing to legislatures made women less likely to bring suit in the first place. Juries' sympathy for the suits evidently declined as well, perhaps reflecting similar social changes. See Annotation, Excessiveness or Inadequacy of Damages for Alienation of Affections, Criminal Conversation, or Seduction, 36 A.L.R.2d 548, 548-49 (1954). At times during the ensuing decades, various states legislatively or judicially curtailed their heartbalm actions. See, e.g., Fundermann v. Mickelson, 304 N.W.2d 790 (Iowa 1981) (abolishing alienation of affections); Wyman v. Wallace, 615 P.2d 452 (Wash, 1980) (same). For examples of the kind of criticism that led to the reform, see Robert C. Brown, Breach of Promise Suits, 77 U. PA. L. REV. 474 (1929); Feinsinger, supra note 12; and Edwin W. Hadley, Breach of Promise To Marry, 2 NOTRE DAME LAW. 190 (1927).
25. In 1935, Indiana became the first state to enact the reform proposals. See Act of Mar. 11, 1933, ch. 208, 1935 Ind. Acts 1009 (codified as amended at IND. CODE ANN. § 34-4-4-1 (Michie 1986)). Within a year six more states had joined Indiana, and by 1945 the total was 11. See M.B.W. Sinclair, Seduction and the Myth of the Ideal Woman, 5 LAW & INEQ. J. 33, 65 & nn.237-39 (1987). Antiheartbalm laws were proposed, but failed, in 15 other states during this period. See id. at 65 n.240. After the first wave of statutes was passed, heartbalm actions appear to have declined dramatically, even in states without antiheartbalm laws. Though it is difficult to ascertain the reason for this decline, it suggests that the same social transformation that made the antiheartbalm proponents' account of love and marriage appealing to legislatures made women less likely to bring suit in the first place. Juries' sympathy for the suits evidently declined as well, perhaps reflecting similar social changes. See Annotation, Excessiveness or Inadequacy of Damages for Alienation of Affections, Criminal Conversation, or Seduction, 36 A.L.R.2d 548, 548-49 (1954). At times during the ensuing decades, various states legislatively or judicially curtailed their heartbalm actions. See, e.g., Fundermann v. Mickelson, 304 N.W.2d 790 (Iowa 1981) (abolishing alienation of affections); Wyman v. Wallace, 615 P.2d 452 (Wash, 1980) (same). For examples of the kind of criticism that led to the reform, see Robert C. Brown, Breach of Promise Suits, 77 U. PA. L. REV. 474 (1929); Feinsinger, supra note 12; and Edwin W. Hadley, Breach of Promise To Marry, 2 NOTRE DAME LAW. 190 (1927).
26. See, e.g., Act of June 11, 1945, ch. 23,138, pmbl., 1945 Fla. Laws 1342, 1342 (stating that heartbalm actions had been "subjected to grave abuses . . . by unscrupulous persons for their unjust enrichment"); Act of July 8, 1947, § 1, 1947 Ill. Laws 1181, 1181 (codified at 740 ILL. COMP. STAT. 15/1 (West 1997)) ("[The breach-of-promise suit] has been used as an instrument for blackmail by unscrupulous persons for their unjust enrichment, due to the indefiniteness of the damages recoverable in such actions . . . ."); Act of Mar. 11, 1935, 1935 Ind. Acts at 1009 (abolishing heartbalm actions "to promote public morals"); Act of May 4, 1945, ch. 1010, § 1, 1945 Md. Laws 1759, 1760 (reciting the same language as the Illinois statute); W.J. Brockelbank, The Nature of the Promise To Marry - A Study in Comparative Law (pt. 1), 41 ILL. L. REV. 1, 14-15 & n.71 (1946) (noting that similar statements existed in New Jersey, Colorado, Nevada, New York, and Wyoming antiheartbalm laws); Brown, supra note 13, at 492; Feinsinger, supra note 12, at 984-85, 988; Hadley, supra note 13, at 193-94; Note, Legislative Abolition of Certain Actions Designed To Protect the Family Relation, 30 ILL. L. REV. 764, 773 n.59 (1935) ("'For years these actions have been used to extract large sums of money without proper justification. They have been a fruitful source of coercion, extortion and blackmail.'" (quoting New York Governor Herbert H. Lehman's 1935 speech upon signing antiheartbalm legislation)).
27. See, e.g., Act of June 11, 1945, ch. 23,138, pmbl., 1945 Fla. Laws 1342, 1342 (stating that heartbalm actions had been "subjected to grave abuses . . . by unscrupulous persons for their unjust enrichment"); Act of July 8, 1947, § 1, 1947 Ill. Laws 1181, 1181 (codified at 740 ILL. COMP. STAT. 15/1 (West 1997)) ("[The breach-of-promise suit] has been used as an instrument for blackmail by unscrupulous persons for their unjust enrichment, due to the indefiniteness of the damages recoverable in such actions . . . ."); Act of Mar. 11, 1935, 1935 Ind. Acts at 1009 (abolishing heartbalm actions "to promote public morals"); Act of May 4, 1945, ch. 1010, § 1, 1945 Md. Laws 1759, 1760 (reciting the same language as the Illinois statute); W.J. Brockelbank, The Nature of the Promise To Marry - A Study in Comparative Law (pt. 1), 41 ILL. L. REV. 1, 14-15 & n.71 (1946) (noting that similar statements existed in New Jersey, Colorado, Nevada, New York, and Wyoming antiheartbalm laws); Brown, supra note 13, at 492; Feinsinger, supra note 12, at 984-85, 988; Hadley, supra note 13, at 193-94; Note, Legislative Abolition of Certain Actions Designed To Protect the Family Relation, 30 ILL. L. REV. 764, 773 n.59 (1935) ("'For years these actions have been used to extract large sums of money without proper justification. They have been a fruitful source of coercion, extortion and blackmail.'" (quoting New York Governor Herbert H. Lehman's 1935 speech upon signing antiheartbalm legislation)).
28. See, e.g., Act of June 11, 1945, ch. 23,138, pmbl., 1945 Fla. Laws 1342, 1342 (stating that heartbalm actions had been "subjected to grave abuses . . . by unscrupulous persons for their unjust enrichment"); Act of July 8, 1947, § 1, 1947 Ill. Laws 1181, 1181 (codified at 740 ILL. COMP. STAT. 15/1 (West 1997)) ("[The breach-of-promise suit] has been used as an instrument for blackmail by unscrupulous persons for their unjust enrichment, due to the indefiniteness of the damages recoverable in such actions . . . ."); Act of Mar. 11, 1935, 1935 Ind. Acts at 1009 (abolishing heartbalm actions "to promote public morals"); Act of May 4, 1945, ch. 1010, § 1, 1945 Md. Laws 1759, 1760 (reciting the same language as the Illinois statute); W.J. Brockelbank, The Nature of the Promise To Marry - A Study in Comparative Law (pt. 1), 41 ILL. L. REV. 1, 14-15 & n.71 (1946) (noting that similar statements existed in New Jersey, Colorado, Nevada, New York, and Wyoming antiheartbalm laws); Brown, supra note 13, at 492; Feinsinger, supra note 12, at 984-85, 988; Hadley, supra note 13, at 193-94; Note, Legislative Abolition of Certain Actions Designed To Protect the Family Relation, 30 ILL. L. REV. 764, 773 n.59 (1935) ("'For years these actions have been used to extract large sums of money without proper justification. They have been a fruitful source of coercion, extortion and blackmail.'" (quoting New York Governor Herbert H. Lehman's 1935 speech upon signing antiheartbalm legislation)).
29. See, e.g., Act of June 11, 1945, ch. 23,138, pmbl., 1945 Fla. Laws 1342, 1342 (stating that heartbalm actions had been "subjected to grave abuses . . . by unscrupulous persons for their unjust enrichment"); Act of July 8, 1947, § 1, 1947 Ill. Laws 1181, 1181 (codified at 740 ILL. COMP. STAT. 15/1 (West 1997)) ("[The breach-of-promise suit] has been used as an instrument for blackmail by unscrupulous persons for their unjust enrichment, due to the indefiniteness of the damages recoverable in such actions . . . ."); Act of Mar. 11, 1935, 1935 Ind. Acts at 1009 (abolishing heartbalm actions "to promote public morals"); Act of May 4, 1945, ch. 1010, § 1, 1945 Md. Laws 1759, 1760 (reciting the same language as the Illinois statute); W.J. Brockelbank, The Nature of the Promise To Marry - A Study in Comparative Law (pt. 1), 41 ILL. L. REV. 1, 14-15 & n.71 (1946) (noting that similar statements existed in New Jersey, Colorado, Nevada, New York, and Wyoming antiheartbalm laws); Brown, supra note 13, at 492; Feinsinger, supra note 12, at 984-85, 988; Hadley, supra note 13, at 193-94; Note, Legislative Abolition of Certain Actions Designed To Protect the Family Relation, 30 ILL. L. REV. 764, 773 n.59 (1935) ("'For years these actions have been used to extract large sums of money without proper justification. They have been a fruitful source of coercion, extortion and blackmail.'" (quoting New York Governor Herbert H. Lehman's 1935 speech upon signing antiheartbalm legislation)).
30. See, e.g., Act of June 11, 1945, ch. 23,138, pmbl., 1945 Fla. Laws 1342, 1342 (stating that heartbalm actions had been "subjected to grave abuses . . . by unscrupulous persons for their unjust enrichment"); Act of July 8, 1947, § 1, 1947 Ill. Laws 1181, 1181 (codified at 740 ILL. COMP. STAT. 15/1 (West 1997)) ("[The breach-of-promise suit] has been used as an instrument for blackmail by unscrupulous persons for their unjust enrichment, due to the indefiniteness of the damages recoverable in such actions . . . ."); Act of Mar. 11, 1935, 1935 Ind. Acts at 1009 (abolishing heartbalm actions "to promote public morals"); Act of May 4, 1945, ch. 1010, § 1, 1945 Md. Laws 1759, 1760 (reciting the same language as the Illinois statute); W.J. Brockelbank, The Nature of the Promise To Marry - A Study in Comparative Law (pt. 1), 41 ILL. L. REV. 1, 14-15 & n.71 (1946) (noting that similar statements existed in New Jersey, Colorado, Nevada, New York, and Wyoming antiheartbalm laws); Brown, supra note 13, at 492; Feinsinger, supra note 12, at 984-85, 988; Hadley, supra note 13, at 193-94; Note, Legislative Abolition of Certain Actions Designed To Protect the Family Relation, 30 ILL. L. REV. 764, 773 n.59 (1935) ("'For years these actions have been used to extract large sums of money without proper justification. They have been a fruitful source of coercion, extortion and blackmail.'" (quoting New York Governor Herbert H. Lehman's 1935 speech upon signing antiheartbalm legislation)).
31. See, e.g., HARRIET SPILLER DAGGETT, LEGAL ESSAYS ON FAMILY LAW 39 (1935); see also Coombs, supra note 7, at 12-13 (discussing the views of feminist reformers). So much did feminist reformers agree with nonfeminists who also attacked the heartbalm actions that they failed to make possible criticisms that would have been particularly sensitive to women's concerns. For example, feminists did not focus their criticisms on the action for alienation of affections, which made someone who advised a wife to leave an abusive husband liable. See Modisett v. McPike, 74 Mo. 636, 646-47 (1881); Robert C. Brown, The Action for Alienation of Affections, 82 U. PA. L. REV. 472, 487 (1934).
32. See, e.g., HARRIET SPILLER DAGGETT, LEGAL ESSAYS ON FAMILY LAW 39 (1935); see also Coombs, supra note 7, at 12-13 (discussing the views of feminist reformers). So much did feminist reformers agree with nonfeminists who also attacked the heartbalm actions that they failed to make possible criticisms that would have been particularly sensitive to women's concerns. For example, feminists did not focus their criticisms on the action for alienation of affections, which made someone who advised a wife to leave an abusive husband liable. See Modisett v. McPike, 74 Mo. 636, 646-47 (1881); Robert C. Brown, The Action for Alienation of Affections, 82 U. PA. L. REV. 472, 487 (1934).
33. See, e.g., HARRIET SPILLER DAGGETT, LEGAL ESSAYS ON FAMILY LAW 39 (1935); see also Coombs, supra note 7, at 12-13 (discussing the views of feminist reformers). So much did feminist reformers agree with nonfeminists who also attacked the heartbalm actions that they failed to make possible criticisms that would have been particularly sensitive to women's concerns. For example, feminists did not focus their criticisms on the action for alienation of affections, which made someone who advised a wife to leave an abusive husband liable. See Modisett v. McPike, 74 Mo. 636, 646-47 (1881); Robert C. Brown, The Action for Alienation of Affections, 82 U. PA. L. REV. 472, 487 (1934).
34. See, e.g., HARRIET SPILLER DAGGETT, LEGAL ESSAYS ON FAMILY LAW 39 (1935); see also Coombs, supra note 7, at 12-13 (discussing the views of feminist reformers). So much did feminist reformers agree with nonfeminists who also attacked the heartbalm actions that they failed to make possible criticisms that would have been particularly sensitive to women's concerns. For example, feminists did not focus their criticisms on the action for alienation of affections, which made someone who advised a wife to leave an abusive husband liable. See Modisett v. McPike, 74 Mo. 636, 646-47 (1881); Robert C. Brown, The Action for Alienation of Affections, 82 U. PA. L. REV. 472, 487 (1934).
35. See Jane E. Larson, "Women Understand So Little, They Call My Good Nature 'Deceit'": A Feminist Rethinking of Seduction, 93 COLUM. L. REV. 374, 379, 397-99 (1993) (discussing changes in sexual morality that meant "fallen" women were no longer completely excluded from respectable society).
36. See Feinsinger, supra note 12, at 1009 ("[The] connotation of sexual misbehavior . . . [leads to] disproportionate publicity. One result . . . is to encourage unfounded claims, and another is to induce innocent defendants to enter into extra-judicial settlements."); Harter F. Wright, Note, The Action for Breach of the Marriage Promise, 10 VA. L. REV. 361, 361 (1924) ("This spectacle of having unfortunate love affairs publicly aired in the courts . . . is . . . highly detrimental to the sacred relation it regards so lightly, and should therefore be consigned to innocuous desuetude along with other barbarous amusements . . . .").
37. See Feinsinger, supra note 12, at 1009 ("[The] connotation of sexual misbehavior . . . [leads to] disproportionate publicity. One result . . . is to encourage unfounded claims, and another is to induce innocent defendants to enter into extra-judicial settlements."); Harter F. Wright, Note, The Action for Breach of the Marriage Promise, 10 VA. L. REV. 361, 361 (1924) ("This spectacle of having unfortunate love affairs publicly aired in the courts . . . is . . . highly detrimental to the sacred relation it regards so lightly, and should therefore be consigned to innocuous desuetude along with other barbarous amusements . . . .").
38. See GROSSBERG, supra note 10, at 33-37; Brown, supra note 13, at 474-90; Feinsinger, supra note 12, at 981, 983-84; Note, supra note 14, at 768; Legislation, Abolition of Actions for Breach of Promise, Alienation of Affections, Criminal Conversation and Seduction, 5 BROOK. L. REV. 196, 198-99 (1936). But see GROSSBERG, supra note 10, at 56-58 (noting that the unusual evidentiary rules for breach-of-promise suits had been largely made to conform with other actions in the late 19th century, well before the legislative reforms).
39. See GROSSBERG, supra note 10, at 33-37; Brown, supra note 13, at 474-90; Feinsinger, supra note 12, at 981, 983-84; Note, supra note 14, at 768; Legislation, Abolition of Actions for Breach of Promise, Alienation of Affections, Criminal Conversation and Seduction, 5 BROOK. L. REV. 196, 198-99 (1936). But see GROSSBERG, supra note 10, at 56-58 (noting that the unusual evidentiary rules for breach-of-promise suits had been largely made to conform with other actions in the late 19th century, well before the legislative reforms).
40. See GROSSBERG, supra note 10, at 33-37; Brown, supra note 13, at 474-90; Feinsinger, supra note 12, at 981, 983-84; Note, supra note 14, at 768; Legislation, Abolition of Actions for Breach of Promise, Alienation of Affections, Criminal Conversation and Seduction, 5 BROOK. L. REV. 196, 198-99 (1936). But see GROSSBERG, supra note 10, at 56-58 (noting that the unusual evidentiary rules for breach-of-promise suits had been largely made to conform with other actions in the late 19th century, well before the legislative reforms).
41. See Brown, supra note 13, at 478.
42. See, e.g., Morey v. Keller, 85 N.W.2d 57, 60 (S.D. 1957); CHARLES T. MCCORMICK, HANDBOOK ON THE LAW OF DAMAGES 403 (1935) ("The awards made by juries are large, and, even after these have been reviewed by the courts, the judgments are often seemingly disproportionate to amounts given tor more substantial claims, such as bodily injuries.").
43. See, e.g., Morey v. Keller, 85 N.W.2d 57, 60 (S.D. 1957); CHARLES T. MCCORMICK, HANDBOOK ON THE LAW OF DAMAGES 403 (1935) ("The awards made by juries are large, and, even after these have been reviewed by the courts, the judgments are often seemingly disproportionate to amounts given tor more substantial claims, such as bodily injuries.").
44. See, e.g., Brown, supra note 13, at 491 (arguing that breach-of-promise suits amounted to "gross discrimination, entirely out of harmony with our modern ideas of the equality of the sexes"); Note, supra note 14, at 768 & n.27 (noting the practical unavailability of the action to men).
45. See infra notes 24-37 and accompanying text.
46. Feminist theorists have examined the gendered norms at work in the reformers' blackmail arguments, see, e.g., Coombs, supra note 7; Sinclair, supra note 13; VanderVelde, supra note 12, but have not specifically interrogated the rhetoric and logic of anticommodification.
47. See Coombs, supra note 7, at 16 (noting that the heartbalm suits that were widely reported usually involved men of wealth and women of much lower social class, so that "[m]any readers would no doubt believe that a man of wealth and breeding never intended nor agreed to marry a woman from the other side of the tracks").
48. Anticommodification also appealed to a more general discomfort with awarding damages for harms that seemed difficult to translate into monetary terms. See Brown, supra note 13, at 493; see also Lisa M. Ruda, Note, Caps on Noneconomic Damages and the Female Plaintiff: Heeding the Warning Signs, 44 CASE W. RES. L. REV. 197, 202-04 (1993) (describing arguments that juries exercise unbridled discretion over noneconomic damages and can too easily be swayed by sympathetic plaintiffs or eloquent lawyers). One contemporary commentator stated that the anticommodification argument was not serious because "the logical extension of that argument would lead to other highly favored rights and remedies," such as compensation for pain and suffering. Frederick L. Kane, Heart Balm and Public Policy, 5 FORDHAM L. REV. 63, 66 (1936). He identified the fear of blackmail "rackets" as the nearly sole cause of the antiheartbalm measures' success. Id.
49. Anticommodification also appealed to a more general discomfort with awarding damages for harms that seemed difficult to translate into monetary terms. See Brown, supra note 13, at 493; see also Lisa M. Ruda, Note, Caps on Noneconomic Damages and the Female Plaintiff: Heeding the Warning Signs, 44 CASE W. RES. L. REV. 197, 202-04 (1993) (describing arguments that juries exercise unbridled discretion over noneconomic damages and can too easily be swayed by sympathetic plaintiffs or eloquent lawyers). One contemporary commentator stated that the anticommodification argument was not serious because "the logical extension of that argument would lead to other highly favored rights and remedies," such as compensation for pain and suffering. Frederick L. Kane, Heart Balm and Public Policy, 5 FORDHAM L. REV. 63, 66 (1936). He identified the fear of blackmail "rackets" as the nearly sole cause of the antiheartbalm measures' success. Id.
50. Aching Hearts Are Itching Palms, Says Woman Legislator as Men Gallantly Pass "Love Bill," INDIANAPOLIS NEWS, Feb. 1, 1935, at 1 (quoting Roberta West Nicholson's speech in defense of her bill); see also Moulin v. Monteleone, 115 So. 447, 457 (La. 1927) (finding that monetary compensation for a wife's adultery would be "revolting"); WILLIAM L. PROSSER, HANDBOOK OF THE LAW OF TORTS § 103, at 697 (2d ed. 1955) ("[I]t is impossible to compensate for such damage with what has derisively been called 'heart balm;' . . . people of any decent instincts do not bring an action which merely adds to the family disgrace . . . .").
51. Aching Hearts Are Itching Palms, Says Woman Legislator as Men Gallantly Pass "Love Bill," INDIANAPOLIS NEWS, Feb. 1, 1935, at 1 (quoting Roberta West Nicholson's speech in defense of her bill); see also Moulin v. Monteleone, 115 So. 447, 457 (La. 1927) (finding that monetary compensation for a wife's adultery would be "revolting"); WILLIAM L. PROSSER, HANDBOOK OF THE LAW OF TORTS § 103, at 697 (2d ed. 1955) ("[I]t is impossible to compensate for such damage with what has derisively been called 'heart balm;' . . . people of any decent instincts do not bring an action which merely adds to the family disgrace . . . .").
52. Aching Hearts Are Itching Palms, Says Woman Legislator as Men Gallantly Pass "Love Bill," INDIANAPOLIS NEWS, Feb. 1, 1935, at 1 (quoting Roberta West Nicholson's speech in defense of her bill); see also Moulin v. Monteleone, 115 So. 447, 457 (La. 1927) (finding that monetary compensation for a wife's adultery would be "revolting"); WILLIAM L. PROSSER, HANDBOOK OF THE LAW OF TORTS § 103, at 697 (2d ed. 1955) ("[I]t is impossible to compensate for such damage with what has derisively been called 'heart balm;' . . . people of any decent instincts do not bring an action which merely adds to the family disgrace . . . .").
53. Dorothy Dunbar Bromley, Breach of Promise-Why?, WOMAN CITIZEN, Sept, 1927, at 8, 40 (quoting a legal encyclopedia).
54. Id. (quoting Charles J. MacColla).
55. See, e.g., Anthony M. Turano, Breach of Promise: Still a Racket, 1934 AM. MERCURY 40, 46.
56. Wright, supra note 17, at 368.
57. Cf. Linda K. Kerber, Separate Spheres, Female Worlds, Woman's Place: The Rhetoric of Women's History, 75 J. AM. HIST. 9 (1988) (discussing the prevalence and power of the separate spheres metaphor); Reva B. Siegel, The Modernization of Marital Status Law: Adjudicating Wives' Rights to Earnings, 1860-1930, 82 GEO. L.J. 2127, 2201-03 (1994) (describing a similar process of the construction of separate spheres).
58. Cf. Linda K. Kerber, Separate Spheres, Female Worlds, Woman's Place: The Rhetoric of Women's History, 75 J. AM. HIST. 9 (1988) (discussing the prevalence and power of the separate spheres metaphor); Reva B. Siegel, The Modernization of Marital Status Law: Adjudicating Wives' Rights to Earnings, 1860-1930, 82 GEO. L.J. 2127, 2201-03 (1994) (describing a similar process of the construction of separate spheres).
59. Cf. Coombs, supra note 7, at 12-13 (discussing criticism of women who lured men into relationships for financial security).
60. See MARGARET JANE RADIN, CONTESTED COMMODITIES: THE TROUBLE WITH TRADE IN SEX, CHILDREN, BODY PARTS, AND OTHER THINGS 18-20 (1996).
61. The Outlawry of Heart-Balm Suits, LITERARY DIG., Apr. 13, 1935, at 22, 22.
62. Sheiks and Breaches in Nebraska, N.Y. TIMES, Jan. 18, 1927, at 24.
63. See Delancey Knox, The High Cost of Loving, 61 FORUM 736, 738-46 (1919).
64. One way of expressing this argument was to claim that an engagement was not a true contract because the parties to it did not perceive it as such: "Ask any presently engaged couple whether either would sue the other in case of a breach and they will repudiate the suggestion." Wright, supra note 17, at 367.
65. Id. at 377; see also DAGGETT, supra note 15, at 47 ("[T]he type who seeks the 'heart balm' of a disappearing suitor's money, does not mind the laughter which alone would keep possibly deserving litigants forever out of court."); MCCORMICK, supra note 20, at 405 ("[E]ven in cases based upon truth, the effect is a commercialization of sentiment. . . . A husband who is without affection or loyalty is well lost . . . . The remedy will never help the sensitive and refined woman, for she will never thus parade in public her wounds of the heart."); Brown, supra note 13, at 492 ("If the heart of the plaintiff is really broken it is impossible to conceive of sordid cash repairing the breach, although it must be confessed that it does have a strikingly remedial effect upon the rather unreal kind of broken heart which this sort of plaintiff seems to experience."); Hadley, supra note 13, at 194 ("[A] woman filed suit against a Chicago man (wealthy, of course), alleging that his breach of promise had so damaged her feelings as to physically prostrate her; yet her feelings were not so delicate as to prevent her from posing on her bed of pain tor photographers . . . ."); Love v. Extortion, TIME, Feb. 18, 1935, at 16 (quoting Indiana state Representative Nicholson's claim that "a suit to recover money as damages for the broken romance cannot soothe a woman if love was genuine"); Turano, supra note 29, at 45 (arguing that "intelligent" women would never sue because they preferred to preserve their "personal dignity").
66. In the context of pornography, Catharine MacKinnon has made a similar point: Images of women's abuse can be used to disprove accusations of abuse. The publicity of the images "proves" that the woman agreed to have the pictures made. See CATHARINE A. MACKINNON, ONLY WORDS 4-5 (1993). One does not have to agree with MacKinnon's position on pornography to agree that calling the harm in heartbalm "self-generated" operates quite effectively to remove the law from regulating a sphere of human activity. Out of concern for its own dignity, and to prevent itself from being abused by adventuresses, the law refuses to recognize certain harms.
67. See, e.g., Norman v. Burks, 209 P.2d 815, 817 (Cal. Dist. Ct. App. 1949); Gill v. Shively, 320 So. 2d 415, 416-17 (Fla. Dist. Ct. App. 1975); Vann v. Vehrs, 633 N.E.2d 102, 104 (Ill. App. Ct. 1994); De Cicco v. Barker, 159 N.E.2d 534, 535 (Mass. 1959); Gikas v. Nicholis, 71 A.2d 785, 786 (N.H. 1950); Beberman v. Segal, 69 A.2d 587, 587 (N.J. Super. Ct. Law Div. 1949); Wilson v. Dabo, 461 N.E.2d 8, 9-10 (Ohio Ct. App. 1983). The Vann court explained: "[N]othing in the language of the Act indicates that it should be extended to cover actions to recover engagement rings or other gifts made on the condition of marriage, where the marriage did not occur." Vann, 633 N.E.2d at 104.
68. See, e.g., Norman v. Burks, 209 P.2d 815, 817 (Cal. Dist. Ct. App. 1949); Gill v. Shively, 320 So. 2d 415, 416-17 (Fla. Dist. Ct. App. 1975); Vann v. Vehrs, 633 N.E.2d 102, 104 (Ill. App. Ct. 1994); De Cicco v. Barker, 159 N.E.2d 534, 535 (Mass. 1959); Gikas v. Nicholis, 71 A.2d 785, 786 (N.H. 1950); Beberman v. Segal, 69 A.2d 587, 587 (N.J. Super. Ct. Law Div. 1949); Wilson v. Dabo, 461 N.E.2d 8, 9-10 (Ohio Ct. App. 1983). The Vann court explained: "[N]othing in the language of the Act indicates that it should be extended to cover actions to recover engagement rings or other gifts made on the condition of marriage, where the marriage did not occur." Vann, 633 N.E.2d at 104.
69. Cf. supra text accompanying note I (discussing a settlement in one case in which the female defendant returned a ring and kept other gifts). Engagement rings became common symbols of impending marriage in the early decades of the 20th century, at about the same time as heartbalm reform gained momentum. See Margaret F. Brinig, Rings and Promises, 6 J.L. ECON. & ORG. 203, 206 (1990) ("The [diamond] industry enjoyed a phenomenal success during the period following 1935, and by 1965, 80 percent of all brides chose diamond engagement rings . . . ."); cf. VIVIANA A. ZELIZER, THE SOCIAL MEANING OF MONEY 99-101 (1994) (describing courtship rituals of the period). Rings were not just symbols; they were tangible economic commitments, and they gained significance as the other economic incidents of marriage were in flux. Cf. Siegel, supra note 31, passim (discussing the changing economic implications of marriage for men and women in the late 19th and early 20th centuries).
70. Cf. supra text accompanying note I (discussing a settlement in one case in which the female defendant returned a ring and kept other gifts). Engagement rings became common symbols of impending marriage in the early decades of the 20th century, at about the same time as heartbalm reform gained momentum. See Margaret F. Brinig, Rings and Promises, 6 J.L. ECON. & ORG. 203, 206 (1990) ("The [diamond] industry enjoyed a phenomenal success during the period following 1935, and by 1965, 80 percent of all brides chose diamond engagement rings . . . ."); cf. VIVIANA A. ZELIZER, THE SOCIAL MEANING OF MONEY 99-101 (1994) (describing courtship rituals of the period). Rings were not just symbols; they were tangible economic commitments, and they gained significance as the other economic incidents of marriage were in flux. Cf. Siegel, supra note 31, passim (discussing the changing economic implications of marriage for men and women in the late 19th and early 20th centuries).
71. See, e.g., Brown v. Thomas, 379 N.W.2d 868, 869 (Wis. Ct. App. 1985) ("[B]ecause the legislature intended to abolish only suits alleging emotional harm caused by the breach of contract to marry, the trial court erred in concluding that [the plaintiff] had no cause of action for recovery of the engagement ring.").
72. See Note, Heartbalm Statutes and Deceit Actions, 83 MICH. L. REV. 1770, 1786-87 (1985) (describing theories of recovery).
73. See supra text accompanying note 18.
74. See, e.g., Bromley, supra note 27, at 9; see also Larson, supra note 16, at 397-99 (discussing the changing attitudes that made multiple sexual and romantic partners more acceptable).
75. 136 A.2d 127 (Pa. 1957).
76. Id. at 130.
77. Id.; see also Norman v. Burks, 209 P.2d 815 (Cal. Dist. Ct. App. 1949) (finding that the donee held the donor's gifts in trust); Gikas v. Nicholis, 71 A.2d 785, 786 (N.H. 1950) (finding that allowing the donee to keep the ring after she broke the engagement would allow unjust enrichment); Tuck v. Tuck, 200 N.E.2d 554, 557 (N.Y. 1964) ("A statute designed to prevent fraud should not unnecessarily be extended by construction to assist in the perpetration of a fraud.").
78. Pavlicic, 136 A.2d at 130-31.
79. See id.
80. See id. at 131; see also Piccininni v. Hajus, 429 A.2d 886, 888 (Conn. 1980) (noting that the male defendant was not asking for damages based on "a broken heart or a mortified spirit").
81. See Josephson v. Dry Dock Sav. Inst., 56 N.E.2d 96 (N.Y. 1944) (holding that the New York heartbalm act banned any suits to recover real or personal property in connection with a breach of promise to marry); Andie v. Kaplan, 288 N.Y. 685, 686 (1942) (same).
82. W.J. Brockelbank, The Nature of a Promise To Marry - A Study in Comparative Law (pt. 2), 41 ILL. L. REV. 199, 207-08 (1946); see also Goldstein v. Rosenthal, 288 N.Y.S.2d 503, 505 (Civ. Ct. 1968) ("Instead of suing for breach of promise, a resourceful young woman would simply persuade her swain to shower her with gifts in anticipation of a marriage which she herself would then reject. In trying to remedy an old abuse, the courts seemingly permitted a new one."); STATE OF N.Y. LAW REVISION COMM'N, REPORT OF THE LAW REVISION COMMISSION FOR 1947, No. 65, at 229-30 (1948) (arguing that rings and other property transferred in anticipation of marriage should be returned to the donor if the marriage did not occur); Robert Markewich, Take Back Your Ring, Sir!, B. BULL. (N.Y. County), Mar. 1949, at 23 (same); George Reiss, Note, The Heart Balm Act and Ante-Nuptial Gifts, 13 BROOK. L. REV. 174, 182 (1947) (same); Duane Anderson, Case Comment, Domestic Relations: Engagement Rings and the "Anti-Heart-Balm" Statute, 3 U. FLA. L. REV. 377, 379 (1950) (same).
83. W.J. Brockelbank, The Nature of a Promise To Marry - A Study in Comparative Law (pt. 2), 41 ILL. L. REV. 199, 207-08 (1946); see also Goldstein v. Rosenthal, 288 N.Y.S.2d 503, 505 (Civ. Ct. 1968) ("Instead of suing for breach of promise, a resourceful young woman would simply persuade her swain to shower her with gifts in anticipation of a marriage which she herself would then reject. In trying to remedy an old abuse, the courts seemingly permitted a new one."); STATE OF N.Y. LAW REVISION COMM'N, REPORT OF THE LAW REVISION COMMISSION FOR 1947, No. 65, at 229-30 (1948) (arguing that rings and other property transferred in anticipation of marriage should be returned to the donor if the marriage did not occur); Robert Markewich, Take Back Your Ring, Sir!, B. BULL. (N.Y. County), Mar. 1949, at 23 (same); George Reiss, Note, The Heart Balm Act and Ante-Nuptial Gifts, 13 BROOK. L. REV. 174, 182 (1947) (same); Duane Anderson, Case Comment, Domestic Relations: Engagement Rings and the "Anti-Heart-Balm" Statute, 3 U. FLA. L. REV. 377, 379 (1950) (same).
84. W.J. Brockelbank, The Nature of a Promise To Marry - A Study in Comparative Law (pt. 2), 41 ILL. L. REV. 199, 207-08 (1946); see also Goldstein v. Rosenthal, 288 N.Y.S.2d 503, 505 (Civ. Ct. 1968) ("Instead of suing for breach of promise, a resourceful young woman would simply persuade her swain to shower her with gifts in anticipation of a marriage which she herself would then reject. In trying to remedy an old abuse, the courts seemingly permitted a new one."); STATE OF N.Y. LAW REVISION COMM'N, REPORT OF THE LAW REVISION COMMISSION FOR 1947, No. 65, at 229-30 (1948) (arguing that rings and other property transferred in anticipation of marriage should be returned to the donor if the marriage did not occur); Robert Markewich, Take Back Your Ring, Sir!, B. BULL. (N.Y. County), Mar. 1949, at 23 (same); George Reiss, Note, The Heart Balm Act and Ante-Nuptial Gifts, 13 BROOK. L. REV. 174, 182 (1947) (same); Duane Anderson, Case Comment, Domestic Relations: Engagement Rings and the "Anti-Heart-Balm" Statute, 3 U. FLA. L. REV. 377, 379 (1950) (same).
85. W.J. Brockelbank, The Nature of a Promise To Marry - A Study in Comparative Law (pt. 2), 41 ILL. L. REV. 199, 207-08 (1946); see also Goldstein v. Rosenthal, 288 N.Y.S.2d 503, 505 (Civ. Ct. 1968) ("Instead of suing for breach of promise, a resourceful young woman would simply persuade her swain to shower her with gifts in anticipation of a marriage which she herself would then reject. In trying to remedy an old abuse, the courts seemingly permitted a new one."); STATE OF N.Y. LAW REVISION COMM'N, REPORT OF THE LAW REVISION COMMISSION FOR 1947, No. 65, at 229-30 (1948) (arguing that rings and other property transferred in anticipation of marriage should be returned to the donor if the marriage did not occur); Robert Markewich, Take Back Your Ring, Sir!, B. BULL. (N.Y. County), Mar. 1949, at 23 (same); George Reiss, Note, The Heart Balm Act and Ante-Nuptial Gifts, 13 BROOK. L. REV. 174, 182 (1947) (same); Duane Anderson, Case Comment, Domestic Relations: Engagement Rings and the "Anti-Heart-Balm" Statute, 3 U. FLA. L. REV. 377, 379 (1950) (same).
86. W.J. Brockelbank, The Nature of a Promise To Marry - A Study in Comparative Law (pt. 2), 41 ILL. L. REV. 199, 207-08 (1946); see also Goldstein v. Rosenthal, 288 N.Y.S.2d 503, 505 (Civ. Ct. 1968) ("Instead of suing for breach of promise, a resourceful young woman would simply persuade her swain to shower her with gifts in anticipation of a marriage which she herself would then reject. In trying to remedy an old abuse, the courts seemingly permitted a new one."); STATE OF N.Y. LAW REVISION COMM'N, REPORT OF THE LAW REVISION COMMISSION FOR 1947, No. 65, at 229-30 (1948) (arguing that rings and other property transferred in anticipation of marriage should be returned to the donor if the marriage did not occur); Robert Markewich, Take Back Your Ring, Sir!, B. BULL. (N.Y. County), Mar. 1949, at 23 (same); George Reiss, Note, The Heart Balm Act and Ante-Nuptial Gifts, 13 BROOK. L. REV. 174, 182 (1947) (same); Duane Anderson, Case Comment, Domestic Relations: Engagement Rings and the "Anti-Heart-Balm" Statute, 3 U. FLA. L. REV. 377, 379 (1950) (same).
87. W.J. Brockelbank, The Nature of a Promise To Marry - A Study in Comparative Law (pt. 2), 41 ILL. L. REV. 199, 207-08 (1946); see also Goldstein v. Rosenthal, 288 N.Y.S.2d 503, 505 (Civ. Ct. 1968) ("Instead of suing for breach of promise, a resourceful young woman would simply persuade her swain to shower her with gifts in anticipation of a marriage which she herself would then reject. In trying to remedy an old abuse, the courts seemingly permitted a new one."); STATE OF N.Y. LAW REVISION COMM'N, REPORT OF THE LAW REVISION COMMISSION FOR 1947, No. 65, at 229-30 (1948) (arguing that rings and other property transferred in anticipation of marriage should be returned to the donor if the marriage did not occur); Robert Markewich, Take Back Your Ring, Sir!, B. BULL. (N.Y. County), Mar. 1949, at 23 (same); George Reiss, Note, The Heart Balm Act and Ante-Nuptial Gifts, 13 BROOK. L. REV. 174, 182 (1947) (same); Duane Anderson, Case Comment, Domestic Relations: Engagement Rings and the "Anti-Heart-Balm" Statute, 3 U. FLA. L. REV. 377, 379 (1950) (same).
88. See STATE OF N.Y. LAW REVISION COMM'N, supra note 53, at 244 (arguing that blackmail through false allegations of transfers of wealth was unlikely).
89. See, e.g., Baber v. Caples, 138 P. 472, 476 (Or. 1914) (citing authorities).
90. See Goldstein, 288 N.Y.S.2d at 505;
91. cf. Knox, supra note 36, at 738-47 (discussing instances of love-stricken men).
92. See, e.g., Spinnell v. Quigley, 785 P.2d 1149, 1150-51 (Wash. Ct. App. 1990)
93. The RESTATEMENT OF RESTITUTION: QUASI CONTRACTS & CONSTRUCTIVE TRUSTS (1937) also endorsed a fault-based recovery rule: If the donee wrongfully broke her promise, the donor could not recover money, but he could recover a ring, heirloom, or similar thing "intimately connected with the marriage." Id. § 58 cmt. c;
94. see also Stanger v. Epler, 115 A.2d 197 (Pa. 1955) (denying a plaintiff's claim for one-half interest in a bank account established before marriage and distinguishing the case from others in which engagement rings had to be returned as conditional gifts).
95. This rather detailed rule took fault into account, reflecting a belief that the "real" value of certain kinds of property could not be measured in market terms. Neil Williams points out that "[p]rohibiting the return of the ring [when the donor breaks his promise] evinces the courts' uneasiness with a wholesale abandonment of the fault ideal." Neil G. Williams, What To Do When There's No "I Do": A Model for Awarding Damages Under Promissory Estoppel, 70 WASH. L. REV. 1019, 1032-33 (1995).
96. See, e.g., Harris v. Davis, 487 N.E.2d 1204, 1205-06 (Ill. App. Ct. 1986); Vigil v. Haber, 888 P.2d 455, 457 (N.M. 1994); Chester v. Fern, No. 4088, 1993 Phila. Cty. Rptr. LEXIS 60, at *16-18 (Pa. C.P. Ct. Nov. 23, 1993).
97. 487 N.E.2d 1204 (Ill. App. Ct. 1986).
98. See id. at 1205.
99. Id. (emphasis added).
100. Courts enforcing general contract law have dealt with this issue under the doctrine of anticipatory breach. One problem with fault rules is that parties can manipulate who is at fault, particularly when legal fault requires some formal act. In nonengagement relationships, parties may jockey with each other, attempting to find an excuse for ending the relationship. See Larry T. Garvin, Adequate Assurance of Performance: Of Risk, Duress, and Cognition, 69 U. COLO. L. REV. 71, 105-07 (1998). Intuitively, such game-playing seems even easier in engagements than in standard contracts, so principles of anticipatory breach may not be satisfactory. I am indebted to Carol Rose for drawing this analogy.
101. The fault rule was unstable in another way. Antiheartbalm laws made the agreement to marry a contract revocable at will (though principles of restitution and unjust enrichment sometimes allowed the parties to be put in their prior position if revocation occurred). See Brown v. Thomas, 379 N.W.2d 868, 873 (Wis. Ct. App. 1985). The reformers had argued that there is nothing morally wrong with breaking an engagement to avoid an unhappy marriage and, therefore, that there should be no legal consequences from doing so. If breaking an engagement is not a wrong generally, there is no reason that it should be a wrong for purposes of awarding the engagement ring.
102. See, e.g., Wright, supra note 17, at 369-70 (arguing that an engagement should allow the parties to make certain of their compatibility before marriage and that there should thus be no constraint on dissolving engagements).
103. See 1965 N.Y. Laws 333 § 2 (codified as amended at N.Y. CIV. RIGHTS LAW § 80-b (McKinney 1992)). A similar provision had been vetoed in 1947. See Goldstein v. Rosenthal, 288 N.Y.S.2d 503, 506 (Civ. Ct. 1968). Like New York, California and Louisiana explicitly permit recovery of engagement gifts as an exception to antiheartbalm principles. See CAL. CIV. CODE § 1590 (West 1982); LA. CIV. CODE ANN. art. 1740 (West 1987).
104. See HERBERT JACOB, SILENT REVOLUTION: THE TRANSFORMATION OF DIVORCE LAW IN THE UNITED STATES 81 (1988).
105. Friedman v. Geller, 368 N.Y.S.2d 980, 981 (Civ. Ct. 1975).
106. Id. at 982; accord Gaden v. Gaden, 323 N.Y.S.2d 955, 962 (1971) ("In truth, in most broken engagements there is no real fault as such - one or both of the parties merely changes his mind about the desirability of the other as a marriage partner."); Brown, 379 N.W.2d at 873 ("[T]he answer to the multiple question 'who broke off the engagement, when, and was he/she justified?' is often lost in the murky depths of contradictory, acrimonious, and largely irrelevant testimony by disappointed couples, their relatives and friends.").
107. Id. at 982; accord Gaden v. Gaden, 323 N.Y.S.2d 955, 962 (1971) ("In truth, in most broken engagements there is no real fault as such - one or both of the parties merely changes his mind about the desirability of the other as a marriage partner."); Brown, 379 N.W.2d at 873 ("[T]he answer to the multiple question 'who broke off the engagement, when, and was he/she justified?' is often lost in the murky depths of contradictory, acrimonious, and largely irrelevant testimony by disappointed couples, their relatives and friends.").
108. Gaden, 323 N.Y.S.2d at 962. The Gaden court explained that, particularly in an age of no-fault divorce, placing blame for the end of an engagement was inappropriate. See id.; see also Aronow v. Silver, 538 A.2d 851, 853 (N.J. Super. Ct. Ch. Div. 1987) (finding the fault rule sexist and archaic in the engagement context because fault could not be ascertained).
109. Gaden, 323 N.Y.S.2d at 962. The Gaden court explained that, particularly in an age of no-fault divorce, placing blame for the end of an engagement was inappropriate. See id.; see also Aronow v. Silver, 538 A.2d 851, 853 (N.J. Super. Ct. Ch. Div. 1987) (finding the fault rule sexist and archaic in the engagement context because fault could not be ascertained).
110. See Heiman v. Parrish, 942 P.2d 631, 635-38 (Kan. 1997) (surveying cases); Vigil v. Haber, 888 P.2d 455, 457 (N.M. 1994) (same); Elaine Marie Tomko, Annotation, Rights in Respect of Engagement and Courtship Presents When Marriage Does Not Ensue, 44 A.L.R.Sth 1, 68-78 (1997) (discussing recent cases in New Jersey, New York, and Ohio that reversed previous fault rules and adopted no-fault rules). Because not all states have had recent cases on the question, fault states still outnumber no-fault states.
111. See Heiman v. Parrish, 942 P.2d 631, 635-38 (Kan. 1997) (surveying cases); Vigil v. Haber, 888 P.2d 455, 457 (N.M. 1994) (same); Elaine Marie Tomko, Annotation, Rights in Respect of Engagement and Courtship Presents When Marriage Does Not Ensue, 44 A.L.R.Sth 1, 68-78 (1997) (discussing recent cases in New Jersey, New York, and Ohio that reversed previous fault rules and adopted no-fault rules). Because not all states have had recent cases on the question, fault states still outnumber no-fault states.
112. The 1969 argument of the English Law Commission (whose mandate was to recommend reforms to outdated laws) for a mandatory ring-return rule based on no-fault principles rested on similar grounds. As Ginger Frost writes: [T]he Law Commission insisted that all gifts conditional on the marriage be returned, no matter who had jilted whom. . . . They justified this provision by arguing that if the courts began questioning who was at fault, they would simply be reviving breach-of-promise cases in another form. Of course, they could easily have avoided this difficulty by saying that all gifts were absolute, thus always awarding the engagement ring to the woman. This, however, was not even suggested. FROST, supra note 10, at 174.
113. See, e.g., Norman v. Burks, 209 P.2d 815, 817 (Cal. Ct. App. 1949); Piccininni v. Hajus, 429 A.2d 886, 888 (Conn. 1980); Morris v. McNab, 135 A.2d 657, 661 (N.J. 1957); Pavlicic v. Vogtsberger, 136 A.2d 127, 131 (Pa. 1957); Note, supra note 43, at 1779-80; cf. De Cicco v. Barker, 159 N.E.2d 534, 535 (Mass. 1959) (distinguishing the broad language of the court's earlier interpretation of state law to allow a suit to recover an engagement ring); Bryan v. Lincoln, 285 S.E.2d 152, 153 (W. Va. 1981) (distinguishing an antiheartbalm law in a case involving the return of a gift of money for use in purchasing marital real estate).
114. See Morris, 135 A.2d at 661; Lampus v. Lampus, 660 A.2d 1308, 1311-12 (Pa. 1995); see also Perthus v. Paul, 58 S.E.2d 190, 192 (Ga. Ct. App. 1950) (allowing a fraud claim when the defendant falsely stated that she was free to marry). Though a preexisting marriage literally means that the defendant in such cases failed to marry the plaintiff and the damages stem from that failure, the extra immorality involved places bigamy outside the scope of antiheartbalm laws. See Tuck v. Tuck, 200 N.E.2d 554, 556 (N.Y. 1964) (contrasting the woman who "knows full well that she is entering into an immoral and meretricious relationship" in a standard breach-of-promise case with "the good faith supposed change of status on the part of the woman deceived"); Snyder v. Snyder, 14 N.Y.S.2d 815, 816 (Sup. Ct. 1939) ("An action to recover damages because of a consummated bigamous marriage is not one which is subject to abuse or manipulation by unscrupulous persons. It is neither within the letter nor the intendment of the law."). Perhaps the reason heartbalm statutes do not cover the situation of a bigamous marriage is that the plaintiff really was harmed by the fraud, whereas women who sleep with their supposed fiancés before marriage are not harmed because they consented to the sex. Gone are the arguments that sex and love cannot be valued with money. Instead, the sympathetic plaintiff is allowed recovery from the rascally defendant.
115. See Morris, 135 A.2d at 661; Lampus v. Lampus, 660 A.2d 1308, 1311-12 (Pa. 1995); see also Perthus v. Paul, 58 S.E.2d 190, 192 (Ga. Ct. App. 1950) (allowing a fraud claim when the defendant falsely stated that she was free to marry). Though a preexisting marriage literally means that the defendant in such cases failed to marry the plaintiff and the damages stem from that failure, the extra immorality involved places bigamy outside the scope of antiheartbalm laws. See Tuck v. Tuck, 200 N.E.2d 554, 556 (N.Y. 1964) (contrasting the woman who "knows full well that she is entering into an immoral and meretricious relationship" in a standard breach-of-promise case with "the good faith supposed change of status on the part of the woman deceived"); Snyder v. Snyder, 14 N.Y.S.2d 815, 816 (Sup. Ct. 1939) ("An action to recover damages because of a consummated bigamous marriage is not one which is subject to abuse or manipulation by unscrupulous persons. It is neither within the letter nor the intendment of the law."). Perhaps the reason heartbalm statutes do not cover the situation of a bigamous marriage is that the plaintiff really was harmed by the fraud, whereas women who sleep with their supposed fiancés before marriage are not harmed because they consented to the sex. Gone are the arguments that sex and love cannot be valued with money. Instead, the sympathetic plaintiff is allowed recovery from the rascally defendant.
116. See, e.g., Hooven v. Quintana, 618 P.2d 702, 703 (Colo. Ct. App. 1980); Lowe v. Quinn, 267 N.E.2d 251, 252 (N.Y. 1971); Armitage v. Hogan, 171 P.2d 830, 837 (Wash. 1946).
117. See sources cited supra note 72.
118. See, e.g., Boyd v. Boyd, 39 Cal. Rptr. 400, 405 (Ct. App. 1964) (refusing to grant relief even in "hardship" cases of tangible loss and holding that the antiheartbalm statute must be applied broadly); Waddell v. Briggs, 381 A.2d 1132, 1135 (Me. 1978) (holding that the antiheartbalm statute reflects a strong legislative policy that should not be circumvented by allowing claims in tort instead of contract). In Brown v. Thomas, 379 N.W.2d 868 (Wis. Ct. App. 1985), the court had to decide how to apply the state's antiheartbalm statute, which contained an explicit exception for property transferred on the basis of a party's fraudulent misrepresentation of his or her intention to marry. See WIS. STAT. ANN. § 768.06 (West 1981). The court found that the exceptions to the statute where an engagement ring was involved were not limited to cases of fraud because the intent of the statute was simply to eliminate causes of action for emotional harm from breach of promise. See Brown, 379 N.W.2d at 869. Of course, if this interpretation is true, then the exception for fraud is unnecessary, because all tangible property is recoverable by statute.
119. See Assembly Without Debate Bans 'Balm' Suits and Speeds Measure to Governor Lehman, N.Y. TIMES, Mar. 21, 1935, at 12.
120. See 38 AM. JUR. 2D Gifts § 81 (1996).
121. See, e.g., Fierro v. Hoel, 465 N.W.2d 669, 671 (Iowa Ct. App. 1990); Heiman v. Parrish, 942 P.2d 631, 633-35 (Kan. 1997);
122. Brown, 379 N.W.2d at 872.
123. See, e.g., McClure v. McClure, 870 S.W.2d 358, 361 (Tex. App. 1994, no writ); 38 AM. JUR. 2D Gifts § 81.
124. See Coconis v. Christakis, 435 N.E.2d 100, 102 (Ohio County Ct. 1981) (finding the condition was not marriage, but the donee's refraining from committing an act preventing marriage). The Coconis court held a defendant did not have to continue preparing for a wedding if she could reasonably perceive the plaintiff's lack of interest, as continuing to prepare would cause financial and emotional harm. The court stated that the gift of an engagement ring is a special occasion in which the perceptions of the event by the parties and the community make the application of the quid-pro-quo principles of everyday business transactions in the commercial market less than fully determinative of the issues which arise if the marriage contemplated thereby does not result. Id. 82. See Lindh v. Surman, 702 A.2d 560, 561 (Pa. Super. Ct. 1997).
125. See id. at 564. It is perhaps significant that only in recent years has conditional gift theory played such a large part in justifying the return of the ring that its logic has been seriously interrogated by litigants; before, it was undertheorized because other ideas, such as the need to deter mercenary women, were more important to courts.
126. RESTATEMENT (SECOND) OF RESTITUTION (Tentative Draft No. 1, 1983).
127. See id. § 6(2) cmt. c (describing "a residual class of cases in which neither mistake nor wrongdoing figures in a way that would in itself explain a duty to account for a benefit"); id § 6(2) cmt. c, illus. 7 (using a broken engagement as an example of the residual rule).
128. The first Restatement of Restitution held that if an engagement ring were truly a conditional gift, the ring should be returned on a no-fault basis. See RESTATEMENT OF RESTITUTION: QUASI CONTRACTS & CONSTRUCTIVE TRUSTS § 58 cmt. b (1936). This assumes, without defending, the proposition that the appropriate condition is marriage rather than willingness to marry.
129. See, e.g., Patterson v. Blanton, 672 N.E.2d 208, 212 (Ohio Ct. App. 1996) (finding that the difficulty of determining fault compelled it to adhere to a bright-line rule of mandatory return of engagement rings as conditional gifts).
130. A recent survey by Cosmopolitan suggests that many women and men take moral stands on the issue that are compatible with their material interests: Seventy-six percent of men surveyed said that a woman should return the ring if a man breaks the engagement, while only 18% of women agreed. See If He Calls Off the Wedding, Should She Give Back the Ring?, COSMOPOLITAN, Sept. 1997, at 76, 76; see also Gigi Barnes, Diamonds Aren't Forever, MADEMOISELLE, Sept. 1995, at 30, 30 ("My logic was simple: Screw around after the invitations have been printed, and you forfeit the jewelry."); Should She Have Been Allowed To Keep the Ring?, N.Y. POST, Dec. 17, 1997, at 4 (quoting three women and one man who believed that a woman should keep the ring after a broken engagement and two men who disagreed).
131. A recent survey by Cosmopolitan suggests that many women and men take moral stands on the issue that are compatible with their material interests: Seventy-six percent of men surveyed said that a woman should return the ring if a man breaks the engagement, while only 18% of women agreed. See If He Calls Off the Wedding, Should She Give Back the Ring?, COSMOPOLITAN, Sept. 1997, at 76, 76; see also Gigi Barnes, Diamonds Aren't Forever, MADEMOISELLE, Sept. 1995, at 30, 30 ("My logic was simple: Screw around after the invitations have been printed, and you forfeit the jewelry."); Should She Have Been Allowed To Keep the Ring?, N.Y. POST, Dec. 17, 1997, at 4 (quoting three women and one man who believed that a woman should keep the ring after a broken engagement and two men who disagreed).
132. A recent survey by Cosmopolitan suggests that many women and men take moral stands on the issue that are compatible with their material interests: Seventy-six percent of men surveyed said that a woman should return the ring if a man breaks the engagement, while only 18% of women agreed. See If He Calls Off the Wedding, Should She Give Back the Ring?, COSMOPOLITAN, Sept. 1997, at 76, 76; see also Gigi Barnes, Diamonds Aren't Forever, MADEMOISELLE, Sept. 1995, at 30, 30 ("My logic was simple: Screw around after the invitations have been printed, and you forfeit the jewelry."); Should She Have Been Allowed To Keep the Ring?, N.Y. POST, Dec. 17, 1997, at 4 (quoting three women and one man who believed that a woman should keep the ring after a broken engagement and two men who disagreed).
133. See Robert William Gribben, Note, Quasi-Contract, 29 CORNELL L.Q. 401, 402 (1944) (attacking the plausibility of the idea that the ring is understood as consideration); Case Note, Domestic Relations, 38 FORDHAM L. REV. 359, 360 (1969) (same); CNN Burden of Proof: Discussion About the Rules of Engagement (CNN television broadcast, Aug. 1, 1997) (sampling attitudes and suggesting that most people do not clearly contemplate conditional gift theory or any other theory about the ring at the time of engagement), transcript available in LEXIS, News Library, CNN File; cf. Lynn A. Baker & Robert E. Emery, When Every Relationship Is Above Average: Perceptions and Expectations of Divorce at the Time of Marriage, 17 LAW & HUM. BEHAV. 439, 443 (1993) (noting that engaged couples uniformly estimate that their marriages will succeed, even knowing the general odds of divorce in America).
134. See Robert William Gribben, Note, Quasi-Contract, 29 CORNELL L.Q. 401, 402 (1944) (attacking the plausibility of the idea that the ring is understood as consideration); Case Note, Domestic Relations, 38 FORDHAM L. REV. 359, 360 (1969) (same); CNN Burden of Proof: Discussion About the Rules of Engagement (CNN television broadcast, Aug. 1, 1997) (sampling attitudes and suggesting that most people do not clearly contemplate conditional gift theory or any other theory about the ring at the time of engagement), transcript available in LEXIS, News Library, CNN File; cf. Lynn A. Baker & Robert E. Emery, When Every Relationship Is Above Average: Perceptions and Expectations of Divorce at the Time of Marriage, 17 LAW & HUM. BEHAV. 439, 443 (1993) (noting that engaged couples uniformly estimate that their marriages will succeed, even knowing the general odds of divorce in America).
135. See Robert William Gribben, Note, Quasi-Contract, 29 CORNELL L.Q. 401, 402 (1944) (attacking the plausibility of the idea that the ring is understood as consideration); Case Note, Domestic Relations, 38 FORDHAM L. REV. 359, 360 (1969) (same); CNN Burden of Proof: Discussion About the Rules of Engagement (CNN television broadcast, Aug. 1, 1997) (sampling attitudes and suggesting that most people do not clearly contemplate conditional gift theory or any other theory about the ring at the time of engagement), transcript available in LEXIS, News Library, CNN File; cf. Lynn A. Baker & Robert E. Emery, When Every Relationship Is Above Average: Perceptions and Expectations of Divorce at the Time of Marriage, 17 LAW & HUM. BEHAV. 439, 443 (1993) (noting that engaged couples uniformly estimate that their marriages will succeed, even knowing the general odds of divorce in America).
136. See Robert William Gribben, Note, Quasi-Contract, 29 CORNELL L.Q. 401, 402 (1944) (attacking the plausibility of the idea that the ring is understood as consideration); Case Note, Domestic Relations, 38 FORDHAM L. REV. 359, 360 (1969) (same); CNN Burden of Proof: Discussion About the Rules of Engagement (CNN television broadcast, Aug. 1, 1997) (sampling attitudes and suggesting that most people do not clearly contemplate conditional gift theory or any other theory about the ring at the time of engagement), transcript available in LEXIS, News Library, CNN File; cf. Lynn A. Baker & Robert E. Emery, When Every Relationship Is Above Average: Perceptions and Expectations of Divorce at the Time of Marriage, 17 LAW & HUM. BEHAV. 439, 443 (1993) (noting that engaged couples uniformly estimate that their marriages will succeed, even knowing the general odds of divorce in America).
137. See Brinig, supra note 41, at 212. Engagement rings were initially presented to men as well as women. See ELLEN K. ROTHMAN, HANDS AND HEARTS: A HISTORY OF COURTSHIP IN AMERICA 161-62 (1984) (discussing practices in the mid-19th century). Over time the practice came to be one-sided, and the vast majority of engaged women now receive them. See id. at 310; Brinig, supra note 41, at 206.
138. See Brinig, supra note 41, at 212. Engagement rings were initially presented to men as well as women. See ELLEN K. ROTHMAN, HANDS AND HEARTS: A HISTORY OF COURTSHIP IN AMERICA 161-62 (1984) (discussing practices in the mid-19th century). Over time the practice came to be one-sided, and the vast majority of engaged women now receive them. See id. at 310; Brinig, supra note 41, at 206.
139. See Brinig, supra note 41, at 212. Engagement rings were initially presented to men as well as women. See ELLEN K. ROTHMAN, HANDS AND HEARTS: A HISTORY OF COURTSHIP IN AMERICA 161-62 (1984) (discussing practices in the mid-19th century). Over time the practice came to be one-sided, and the vast majority of engaged women now receive them. See id. at 310; Brinig, supra note 41, at 206.
140. See Brinig, supra note 41, at 212. Engagement rings were initially presented to men as well as women. See ELLEN K. ROTHMAN, HANDS AND HEARTS: A HISTORY OF COURTSHIP IN AMERICA 161-62 (1984) (discussing practices in the mid-19th century). Over time the practice came to be one-sided, and the vast majority of engaged women now receive them. See id. at 310; Brinig, supra note 41, at 206.
141. See Brinig, supra note 41, at 209 n.13, 213. Brinig might say that the current shift to an absolute ring-return rule reflects a decline in the value of a woman's consent to premarital intercourse; she argues that the decline in the marriage rate can be explained in this way. See id. at 212. Yet the reason Brinig offers for the popular rise of the engagement ring is inconsistent even with the earlier fault rules. If the woman's loss of virginity is to be compensated, she should always keep the ring. The fault rule itself represented a new relationship between love and property in which the jilted lover could retain or reclaim the material symbol of the lost love. Sexual relations, loss of status or future prospects, and other consequences of a broken engagement have been eliminated from consideration. See supra text accompanying note 42.
142. See JAMES REMINGTON MCCARTHY, RINGS THROUGH THE AGES: AN INFORMAL HISTORY 160-61 (1945); Bromley, supra note 27, at 9 ("[I]t must be remembered that custom allows [a woman] to keep the engagement ring and all other gifts, which will presumably be worth as much in cash as the amount she has spent on linens and frocks, bridal veil and white satin.").
143. See JAMES REMINGTON MCCARTHY, RINGS THROUGH THE AGES: AN INFORMAL HISTORY 160-61 (1945); Bromley, supra note 27, at 9 ("[I]t must be remembered that custom allows [a woman] to keep the engagement ring and all other gifts, which will presumably be worth as much in cash as the amount she has spent on linens and frocks, bridal veil and white satin.").
144. Courtney Rubin, Calling It All Off, WASHINGTONIAN, Jan. 1997, at 181.
145. See Law Reform (Miscellaneous Provisions) Act 1970, ch. 33, ¶ 3, § 2.
146. Stephen Cretney, Statutes, Law Reform (Miscellaneous Provisions) Act 1970, 33 MOD. L. REV. 534, 536 (1970).
147. See supra text accompanying note 1.
148. Andrea Peyser, These Clueless Tycoons Need a Lesson in Love, N.Y. POST, Dec. 17, 1997, at 4.
149. See Thomas Zambito, Man Sues Ex-Fiancée To Get Ring Back: What Do Advice Columnists Say?, RECORD (N.J.), Aug. 28, 1996, at N1.
150. See id.; see also Judith Martin, Engagement Rings: Carat and Stick, WASH. POST, Mar. 15, 1998, at F8 (suggesting that courts should not have to be involved in returning rings because "there has always been an etiquette rule on the books requiring that the ring must be returned when the engagement is - for whatever reason - defunct"). For the "dignity of the wounded," Miss Manners urges women not to resist returning rings so that they do not "furnish proof that they are so grasping that the symbolism of an engagement ring has entirely escaped them, and they see nothing but its monetary value." Martin, supra. She mentions, but does not address, the problem of money wasted on wedding preparations. See id.
151. See id.; see also Judith Martin, Engagement Rings: Carat and Stick, WASH. POST, Mar. 15, 1998, at F8 (suggesting that courts should not have to be involved in returning rings because "there has always been an etiquette rule on the books requiring that the ring must be returned when the engagement is - for whatever reason - defunct"). For the "dignity of the wounded," Miss Manners urges women not to resist returning rings so that they do not "furnish proof that they are so grasping that the symbolism of an engagement ring has entirely escaped them, and they see nothing but its monetary value." Martin, supra. She mentions, but does not address, the problem of money wasted on wedding preparations. See id.
152. Judith Martin, Finding a Way To Stop Passengers from Taking Control, CHI. TRIB., Jan. 25, 1996, at 11; cf. Barnes, supra note 88, at 30 ("I did, for a short time, consider turning [the ring] into a bullet."). By contrast, conditional gift plaintiffs and courts do not hold that the symbolism of a ring allows a defendant to treat it purely as a symbol; it is also valuable property. See infra note 108 and accompanying text.
153. Judith Martin, Finding a Way To Stop Passengers from Taking Control, CHI. TRIB., Jan. 25, 1996, at 11; cf. Barnes, supra note 88, at 30 ("I did, for a short time, consider turning [the ring] into a bullet."). By contrast, conditional gift plaintiffs and courts do not hold that the symbolism of a ring allows a defendant to treat it purely as a symbol; it is also valuable property. See infra note 108 and accompanying text.
154. Courts adjudicating divorce cases usually find that engagement rings become a woman's separate property upon marriage and are therefore not included in the assets to be divided upon divorce. Compare Weiss v. Weiss, 543 A.2d 1062, 1066 (N.J. Super. Ct. App. Div. 1988) (holding that a house bought in anticipation of marriage becomes marital property and must be divided upon divorce), with Winer v. Winer, 575 A.2d 518, 528 (N.J. Super. Ct. App. Div. 1990) (distinguishing Weiss on the grounds that an engagement ring is traditionally a conditional gift to a woman and becomes separate property upon marriage), Parker v. Lewis, No. CN90-6132, 1991 Del. Fam. Ct. LEXIS 42, at *15 (Fam. Ct. June 19, 1991) (holding that an engagement ring is separate personal property and that the husband should not be allowed to be an "Indian giver"), and Lipton v. Lipton, 514 N.Y.S.2d 158, 160 (Sup. Ct. 1986) (reaching the same result). Although property acquired after the moment of marriage is usually marital property, divorce courts label engagement rings absolute gifts, retroactive to the moment of the gift, to evade that rule. See Lipton, 514 N.Y.S.2d at 159 (holding that an engagement ring is "absolute in form when given" though conditional and thus defeasible upon failure of the condition).
155. Courts adjudicating divorce cases usually find that engagement rings become a woman's separate property upon marriage and are therefore not included in the assets to be divided upon divorce. Compare Weiss v. Weiss, 543 A.2d 1062, 1066 (N.J. Super. Ct. App. Div. 1988) (holding that a house bought in anticipation of marriage becomes marital property and must be divided upon divorce), with Winer v. Winer, 575 A.2d 518, 528 (N.J. Super. Ct. App. Div. 1990) (distinguishing Weiss on the grounds that an engagement ring is traditionally a conditional gift to a woman and becomes separate property upon marriage), Parker v. Lewis, No. CN90-6132, 1991 Del. Fam. Ct. LEXIS 42, at *15 (Fam. Ct. June 19, 1991) (holding that an engagement ring is separate personal property and that the husband should not be allowed to be an "Indian giver"), and Lipton v. Lipton, 514 N.Y.S.2d 158, 160 (Sup. Ct. 1986) (reaching the same result). Although property acquired after the moment of marriage is usually marital property, divorce courts label engagement rings absolute gifts, retroactive to the moment of the gift, to evade that rule. See Lipton, 514 N.Y.S.2d at 159 (holding that an engagement ring is "absolute in form when given" though conditional and thus defeasible upon failure of the condition).
156. Smith v. Smith, 797 S.W.2d 879, 881 (Mo. Ct. App. 1990).
157. See Beverly Bartlett, Is an Engagement Ring Just a Down Payment on a Bride?, Gannett News Serv., Aug. 9, 1997 ("[T]o suggest that a man is making a down payment on a wife by buying an engagement ring is just insulting. . . . The notion that it's on loan until she comes through with an 'I do' is pretty unseemly."), available in LEXIS, News Library, Cumws File;
158. see also CNN Burden of Proof: Discussion About the Rules of Engagement, supra note 89 (containing arguments that conditional gift theory makes marriage into an unappealing business proposal).
159. Lindh v. Surman, 702 A.2d 560, 564 (Pa. Super. Ct. 1997) (Schiller, J., dissenting).
160. Cf. Siegel, supra note 31, at 2207 (making the same argument about marital status law generally).
161. See BETH L. BAILEY, FROM FRONT PORCH TO BACK SEAT: COURTSHIP IN TWENTIETH CENTURY AMERICA 75 (1988) (discussing attitudes in the 1950s and 1960s that linked a woman's material success to her success in the marriage market and that equated engagement, not with finding a loving man, but with receiving an expensive ring); id. at 162 n.86 ("Engagement rings, which [Life] described as 'courtship's greatest prize,' symbolized the material goods that came with marriage." (quoting Ernest Havemann, Modern Courtship: The Great Illusion, LIFE, Sept. 15, 1961, at 114, 128 (photo caption))).
162. See BETH L. BAILEY, FROM FRONT PORCH TO BACK SEAT: COURTSHIP IN TWENTIETH CENTURY AMERICA 75 (1988) (discussing attitudes in the 1950s and 1960s that linked a woman's material success to her success in the marriage market and that equated engagement, not with finding a loving man, but with receiving an expensive ring); id. at 162 n.86 ("Engagement rings, which [Life] described as 'courtship's greatest prize,' symbolized the material goods that came with marriage." (quoting Ernest Havemann, Modern Courtship: The Great Illusion, LIFE, Sept. 15, 1961, at 114, 128 (photo caption))).
163. See ROTHMAN, supra note 90, at 310; Brinig, supra note 41, at 206; Lois Smith Brady, Rock Me: A Girl and Her Ring, MADEMOISELLE, Mar. 1990, at 177, 177 ("'The minute you get engaged these days everyone asks "Where's the ring? Where's the diamond?" If you don't have one, they look at you like you're lying about the engagement.'" (quoting a 27-year-old woman)); Christian Engagement Rings, COMMONWEAL Oct. 21, 1949, at 38, 38 (discussing couples' desire for expensive rings, the larger the better to manifest love). Engagement rings seem to evoke an almost fetishistic reaction from some people. See Renée Bacher, The Ring Cycle, N.Y. TIMES, Aug. 13, 1989, § 6 (Magazine), at 20 ("It was as if some spiritual presence emanated from the stone. It beckoned to me, enveloped me, and awakened a feeling I never thought I was capable of."); Brady, supra, at 177, 244 (discussing the attention paid to ring size by ring-wearers and observers alike).
164. See ROTHMAN, supra note 90, at 310; Brinig, supra note 41, at 206; Lois Smith Brady, Rock Me: A Girl and Her Ring, MADEMOISELLE, Mar. 1990, at 177, 177 ("'The minute you get engaged these days everyone asks "Where's the ring? Where's the diamond?" If you don't have one, they look at you like you're lying about the engagement.'" (quoting a 27-year-old woman)); Christian Engagement Rings, COMMONWEAL Oct. 21, 1949, at 38, 38 (discussing couples' desire for expensive rings, the larger the better to manifest love). Engagement rings seem to evoke an almost fetishistic reaction from some people. See Renée Bacher, The Ring Cycle, N.Y. TIMES, Aug. 13, 1989, § 6 (Magazine), at 20 ("It was as if some spiritual presence emanated from the stone. It beckoned to me, enveloped me, and awakened a feeling I never thought I was capable of."); Brady, supra, at 177, 244 (discussing the attention paid to ring size by ring-wearers and observers alike).
165. See ROTHMAN, supra note 90, at 310; Brinig, supra note 41, at 206; Lois Smith Brady, Rock Me: A Girl and Her Ring, MADEMOISELLE, Mar. 1990, at 177, 177 ("'The minute you get engaged these days everyone asks "Where's the ring? Where's the diamond?" If you don't have one, they look at you like you're lying about the engagement.'" (quoting a 27-year-old woman)); Christian Engagement Rings, COMMONWEAL Oct. 21, 1949, at 38, 38 (discussing couples' desire for expensive rings, the larger the better to manifest love). Engagement rings seem to evoke an almost fetishistic reaction from some people. See Renée Bacher, The Ring Cycle, N.Y. TIMES, Aug. 13, 1989, § 6 (Magazine), at 20 ("It was as if some spiritual presence emanated from the stone. It beckoned to me, enveloped me, and awakened a feeling I never thought I was capable of."); Brady, supra, at 177, 244 (discussing the attention paid to ring size by ring-wearers and observers alike).
166. See ROTHMAN, supra note 90, at 310; Brinig, supra note 41, at 206; Lois Smith Brady, Rock Me: A Girl and Her Ring, MADEMOISELLE, Mar. 1990, at 177, 177 ("'The minute you get engaged these days everyone asks "Where's the ring? Where's the diamond?" If you don't have one, they look at you like you're lying about the engagement.'" (quoting a 27-year-old woman)); Christian Engagement Rings, COMMONWEAL Oct. 21, 1949, at 38, 38 (discussing couples' desire for expensive rings, the larger the better to manifest love). Engagement rings seem to evoke an almost fetishistic reaction from some people. See Renée Bacher, The Ring Cycle, N.Y. TIMES, Aug. 13, 1989, § 6 (Magazine), at 20 ("It was as if some spiritual presence emanated from the stone. It beckoned to me, enveloped me, and awakened a feeling I never thought I was capable of."); Brady, supra, at 177, 244 (discussing the attention paid to ring size by ring-wearers and observers alike).
167. See ROTHMAN, supra note 90, at 310; Brinig, supra note 41, at 206; Lois Smith Brady, Rock Me: A Girl and Her Ring, MADEMOISELLE, Mar. 1990, at 177, 177 ("'The minute you get engaged these days everyone asks "Where's the ring? Where's the diamond?" If you don't have one, they look at you like you're lying about the engagement.'" (quoting a 27-year-old woman)); Christian Engagement Rings, COMMONWEAL Oct. 21, 1949, at 38, 38 (discussing couples' desire for expensive rings, the larger the better to manifest love). Engagement rings seem to evoke an almost fetishistic reaction from some people. See Renée Bacher, The Ring Cycle, N.Y. TIMES, Aug. 13, 1989, § 6 (Magazine), at 20 ("It was as if some spiritual presence emanated from the stone. It beckoned to me, enveloped me, and awakened a feeling I never thought I was capable of."); Brady, supra, at 177, 244 (discussing the attention paid to ring size by ring-wearers and observers alike).
168. Cf. Gayl v. Shader (In re Shader), 90 B.R. 85, 90 (Bankr. D. Del. 1988) ("Ken received value for the ring - Lucie married him."). But cf. Pollock v. Simon, 205 F. 1005, 1006 (E.D. Pa. 1913) ("The defendant gave no consideration [to her fiancé]; the usual reciprocal promises to marry had Previously been exchanged and the transaction was therefore purely voluntary."); Heiman v. Parrish, 942 P.2d 631, 639 (Kan. 1997) (Marquardt, J., dissenting) ("If the parties have exchanged mutual promises, the consideration for the woman's promise to marry is the man's promise to marry. Under this analysis, the ring is transferred without consideration and is a gift."). Relevant evidence about common understandings of the ring's meaning comes from the plaintiffs in ring cases themselves. They have not asked for injunctive relief; instead, they desire to be made whole by the return of the ring or a sum of money equivalent to the ring's market value. The ring may have been perceived as a symbol originally, but its objective monetary value becomes critical when the engagement ends For a few of many possible examples, see Harris v. Davis, 487 N.E.2d 1204 (Ill. App. Ct. 1986);
169. Friedman v. Geller, 368 N.Y.S.2d 980 (Civ. Ct. 1975); and Lyle v. Durham, 473 N.E.2d 1216 (Ohio Ct. App. 1984). See also Vince Cook & Jack Leyhane, Wedding Etiquette Miss Manners Never Considered, CHI. DAILY L. BULL., June 3, 1996, at 6 (noting that men occasionally make claims to their insurance companies for rings kept by ex-fiancées). I have not discovered any case in which the plaintiff insisted on the return of the ring as opposed to its monetary value. In Schiller v. Miller, 621 So. 2d 481 (Fla. Dist. Ct. App. 1993), the court upheld a temporary restraining order enjoining the defendant from selling jewelry pending resolution of the plaintiff's claim for its return because the court found that the items were difficult to value and that a sale at that particular time would not reflect a fair market price. See id. at 482. The court did not suggest, however, that it would not award money damages if they could be fairly determined.
170. Friedman v. Geller, 368 N.Y.S.2d 980 (Civ. Ct. 1975); and Lyle v. Durham, 473 N.E.2d 1216 (Ohio Ct. App. 1984). See also Vince Cook & Jack Leyhane, Wedding Etiquette Miss Manners Never Considered, CHI. DAILY L. BULL., June 3, 1996, at 6 (noting that men occasionally make claims to their insurance companies for rings kept by ex-fiancées). I have not discovered any case in which the plaintiff insisted on the return of the ring as opposed to its monetary value. In Schiller v. Miller, 621 So. 2d 481 (Fla. Dist. Ct. App. 1993), the court upheld a temporary restraining order enjoining the defendant from selling jewelry pending resolution of the plaintiff's claim for its return because the court found that the items were difficult to value and that a sale at that particular time would not reflect a fair market price. See id. at 482. The court did not suggest, however, that it would not award money damages if they could be fairly determined.
171. Friedman v. Geller, 368 N.Y.S.2d 980 (Civ. Ct. 1975); and Lyle v. Durham, 473 N.E.2d 1216 (Ohio Ct. App. 1984). See also Vince Cook & Jack Leyhane, Wedding Etiquette Miss Manners Never Considered, CHI. DAILY L. BULL., June 3, 1996, at 6 (noting that men occasionally make claims to their insurance companies for rings kept by ex-fiancées). I have not discovered any case in which the plaintiff insisted on the return of the ring as opposed to its monetary value. In Schiller v. Miller, 621 So. 2d 481 (Fla. Dist. Ct. App. 1993), the court upheld a temporary restraining order enjoining the defendant from selling jewelry pending resolution of the plaintiff's claim for its return because the court found that the items were difficult to value and that a sale at that particular time would not reflect a fair market price. See id. at 482. The court did not suggest, however, that it would not award money damages if they could be fairly determined.
172. Perhaps because a woman generally has less that is of material worth to give than a man, the value of her intangible promise is relatively greater, comprising as it does a greater part of what she has to give.
173. See Vigil v. Haber, 888 P.2d 455, 457 (N.M. 1994).
174. There is one parallel to be drawn from common legal practice. A delay between the sale contract and the closing is almost universal in real estate transactions. There, the main function of a delay between the agreement and the consummation is to allow the buyer to get a mortgage, but the buyer can also check on the condition of the property, the title, and so on. Disputes similar to those in premarital law arise when a sale falls through and one party contests the other's claim to the "earnest money" paid in anticipation of closing the sale. Disagreements over who did what to whom and whether one party was justified in its actions given what the other had already done are common in litigation over earnest money. See, e.g., Denson v. Stack, 997 F.2d 1356 (11th Cir. 1993); Kaiser v. Wright, 629 P.2d 581 (Colo. 1981); Gross v. Pydynkowski, 927 P.2d 630 (Or. Ct. App. 1996).
175. See Schultz v. Duitz, 69 S.W.2d 27, 30 (Ky. 1934) ("[I]n modern ages [the engagement ring] has developed into more than a mere custom or symbol, and has become part of the real consideration of the contract."). Courts are unwilling to recognize formal bargains of this sort; for example, they have repeatedly held that marital services cannot be consideration between spouses because such services must be given for love if they are to be given at all. See Borelli v. Brusseau 16 Cal. Rptr. 2d 16, 20 (Ct. App. 1993); Youngberg v. Holstrom, 108 N.W.2d 498, 502 (Iowa 1961); Oates v. Oates, 33 S.E.2d 457, 460 (W. Va. 1945); see also Siegel, supra note 31, at 2185-91 (discussing these and other cases). Even if the parties did intend that the ring serve as consideration, the law could refuse to enforce that intention, as courts refuse to award damages for breach of explicit contracts regarding love and intimate services. See, e.g., Alderson v. Alderson, 225 Cal. Rptr. 610 (Ct. App. 1986); Boland v. Catalano, 521 A.2d 142 (Conn. 1987); Watkins v. Nugen, 45 S.E. 262 (Ga. 1903); Schwegmann v. Schwegmann, 441 So. 2d 316 (La. Ct. App. 1983); Carnes v. Sheldon, 311 N.W.2d 747 (Mich. Ct. App. 1981); In re Estate of Steffes, 290 N.W.2d 697 (Wis. 1980); see also Siegel, supra note 31, at 2181-96 (discussing these and other cases). This could easily be the case with engagement rings, as New York's early interpretation of its antiheartbalm law shows. See supra text accompanying note 52. The idea that the ring could be consideration for marriage directly contravenes antiheartbalm statutes inasmuch as the legislatures have declared that agreements to marry are not contracts; the ring is, as it were, consideration in the air.
176. As Karl Llewellyn put it: Formal acts of the known type . . . signify openly definitive intent to change the existing situation- and to be relied on. . . . [In the case of] the delivery and acceptance of the unambiguous token (engagement ring . . .) or the ambiguous token[,] . . . whether sanctions other than legal be invoked in addition or not, and whether or not the form accomplishes additional purposes . . . , the common purpose of the form is clear. The overt sign of utter intent to assume obligation has been given. The other party has reason to rely. Karl N. Llewellyn, What Price Contract?-An Essay in Perspective, 40 YALE L.J. 704, 711-12 (1931) (footnote omitted).
177. See supra notes 24-37 and accompanying text; cf. Ellman, supra note 9, at 788 (discussing the similar views of modern no-fault theorists).
178. Goldstein v. Rosenthal, 288 N.Y.S.2d 503, 507 (Civ. Ct. 1968).
179. See id.; see also McIntire v. Raukhorst, 585 N.E.2d 456, 457-58 (Ohio Ct. App. 1989).
180. See FRIEDRICH KESSLER ET AL., CONTRACTS 706-23 (3d ed. 1986) (collecting and discussing authorities on the symbolism of consideration).
181. Danielle N. Rodier, Ex-Fiancé Will Get Engagement Ring Back, PA. L. WKLY., Oct. 24, 1997, at 14 (alteration in original).
182. See Brady, supra note 107, at 244 ("'Young couples today really do their engagement-ring homework. They come in and ask for a VVS2, Rappaport Report gem with G to H color.'" (quoting a jeweller)); W. Waters Schwab, Hearts and Diamonds, AM. MAG., July 1948, at 22, 22-23 ("[M]ore than half of the starry-eyed customers who bought [rings] shopped for the ring together. . . . [A]ccording to the 10,000 jewelers with whom I'm associated, even when the man does come in alone for the ring he has been pretty well briefed by the girl.").
183. See Brady, supra note 107, at 244 ("'Young couples today really do their engagement-ring homework. They come in and ask for a VVS2, Rappaport Report gem with G to H color.'" (quoting a jeweller)); W. Waters Schwab, Hearts and Diamonds, AM. MAG., July 1948, at 22, 22-23 ("[M]ore than half of the starry-eyed customers who bought [rings] shopped for the ring together. . . . [A]ccording to the 10,000 jewelers with whom I'm associated, even when the man does come in alone for the ring he has been pretty well briefed by the girl.").
184. Cf. Wildey v. Springs, 840 F. Supp. 1259, 1262 (N.D. Ill. 1994) (noting that antiheartbalm laws may have been spurred more "to protect potential [male] defendants from overzealous spurned [female] lovers" than by "changing societal views of engagement and marriage"), rev'd on other grounds, 47 F.3d 1475 (7th Cir. 1995).
185. See Martha Chamallas & Linda K. Kerber, Women, Mothers, and the Law of Fright: A History, 88 MICH. L. REV. 814, 816 (1990) (arguing that the apparent gender neutrality of tort rules elevating physical security and property above emotional security and relationships burdens women more than men); cf. Reva B. Siegel, "The Rule of Love": Wife Beating as Prerogative and Privacy, 105 YALE L.J. 2117 (1996) (discussing how injuries to women are made legally invisible by casting them as emotional rather than material). This is not unrelated to the general presumption that emotional harm, unlike physical harm, is more a matter of a victim's idiosyncratic susceptibility than a tortfeasor's fault. See Nancy Levit, Ethereal Torts, 61 GEO. WASH. L. REV. 136, 174-75 (1992).
186. See Martha Chamallas & Linda K. Kerber, Women, Mothers, and the Law of Fright: A History, 88 MICH. L. REV. 814, 816 (1990) (arguing that the apparent gender neutrality of tort rules elevating physical security and property above emotional security and relationships burdens women more than men); cf. Reva B. Siegel, "The Rule of Love": Wife Beating as Prerogative and Privacy, 105 YALE L.J. 2117 (1996) (discussing how injuries to women are made legally invisible by casting them as emotional rather than material). This is not unrelated to the general presumption that emotional harm, unlike physical harm, is more a matter of a victim's idiosyncratic susceptibility than a tortfeasor's fault. See Nancy Levit, Ethereal Torts, 61 GEO. WASH. L. REV. 136, 174-75 (1992).
187. See Martha Chamallas & Linda K. Kerber, Women, Mothers, and the Law of Fright: A History, 88 MICH. L. REV. 814, 816 (1990) (arguing that the apparent gender neutrality of tort rules elevating physical security and property above emotional security and relationships burdens women more than men); cf. Reva B. Siegel, "The Rule of Love": Wife Beating as Prerogative and Privacy, 105 YALE L.J. 2117 (1996) (discussing how injuries to women are made legally invisible by casting them as emotional rather than material). This is not unrelated to the general presumption that emotional harm, unlike physical harm, is more a matter of a victim's idiosyncratic susceptibility than a tortfeasor's fault. See Nancy Levit, Ethereal Torts, 61 GEO. WASH. L. REV. 136, 174-75 (1992).
188. The mandatory ring-return rule achieves in practice results similar to the traditional rule in cases in which husbands and wives sued for injuries to spouses: Husbands could recover, because their wives provided services that were measurable in monetary terms; wives, however, could not, because husbands did not stoop to servicing wives, and wives of injured or deceased men were merely deprived of their company and affections. See Chamallas & Kerber, supra note 121, at 817-18; Ruda, supra note 25, at 209-10.
189. See, e.g., Aronow v. Silver, 538 A.2d 851, 853 (N.J. Super. Ct. Ch. Div. 1987).
190. See CHERYL MERSER, HONORABLE INTENTIONS: THE MANNERS OF COURTSHIP IN THE '80s, at 20-23 (1983) (discussing the apparently strong need of people in love for visible symbols of that love).
191. See Karen Martin, Wedding Bills: So Who Pays for What? (visited Mar. 25, 1998) 〈http://www.khoo.com/dc-wedding/article10.htm〉. This custom appears to be in some flux - recent surveys suggest that the bride and groom increasingly pay, while the groom's parents are still unlikely to contribute. See Laura Koos-Feder, Wedding Season Ushers in Family Conflict, INVESTOR'S BUS. DAILY, May 19, 1997, at A1; Survey Reveals Brides' Wedding Gift Preferences, PR Newswire, Dec. 13, 1994, available in LEXIS, News Library, Arcnws File. Brides (and their families) seem to contribute more, even when both sides pay for parts of the wedding, though the evidence is not entirely clear. See Katherine Atwell-Herbert, Consultant Creates Dream Weddings, ARIZ. REPUBLIC, Jan. 4, 1998, at 4; Survey Reveals Brides' Wedding Gift Preferences, supra. Engaged women routinely seek advice on who should pay the expenses, and often receive the answer that tradition should not be followed and that both families should pay. Nonetheless, there seems to be an underlying expectation that brides' families are primarily responsible for expenses if they can afford the burden. See, e.g., Jessica Blackman Freedman & Alison Blackman Dunham, The Wedding Belles: Principles (visited Mar. 25, 1998) 〈http://www.blissezine.com/bel97101.htm〉; Deb McCoy, Frequently Asked Questions on Wedding Expenses (visited Mar. 25, 1998) 〈http://www .weddingpages.com/expert/faqexp.html〉. If a woman's parents, as is traditional, pay for the wedding, is a rule that denies them any compensation really gendered? Gender ideology certainly influenced courts' decisions about what kinds of losses are compensable even if fathers and mothers of brides are equally disadvantaged by the rule, just as the related practice of giving dowries is gendered (and constitutes a source of gender discrimination) though parents - fathers, even - are the ones who formally bear the cost of a dowry. In fact, harm to men as well as women is a feature of many (arguably all) gender inequalities. Women have sons, fathers, husbands, and the like who suffer both emotionally and financially from discrimination against their female intimates.
192. See Karen Martin, Wedding Bills: So Who Pays for What? (visited Mar. 25, 1998) 〈http://www.khoo.com/dc-wedding/article10.htm〉. This custom appears to be in some flux - recent surveys suggest that the bride and groom increasingly pay, while the groom's parents are still unlikely to contribute. See Laura Koos-Feder, Wedding Season Ushers in Family Conflict, INVESTOR'S BUS. DAILY, May 19, 1997, at A1; Survey Reveals Brides' Wedding Gift Preferences, PR Newswire, Dec. 13, 1994, available in LEXIS, News Library, Arcnws File. Brides (and their families) seem to contribute more, even when both sides pay for parts of the wedding, though the evidence is not entirely clear. See Katherine Atwell-Herbert, Consultant Creates Dream Weddings, ARIZ. REPUBLIC, Jan. 4, 1998, at 4; Survey Reveals Brides' Wedding Gift Preferences, supra. Engaged women routinely seek advice on who should pay the expenses, and often receive the answer that tradition should not be followed and that both families should pay. Nonetheless, there seems to be an underlying expectation that brides' families are primarily responsible for expenses if they can afford the burden. See, e.g., Jessica Blackman Freedman & Alison Blackman Dunham, The Wedding Belles: Principles (visited Mar. 25, 1998) 〈http://www.blissezine.com/bel97101.htm〉; Deb McCoy, Frequently Asked Questions on Wedding Expenses (visited Mar. 25, 1998) 〈http://www .weddingpages.com/expert/faqexp.html〉. If a woman's parents, as is traditional, pay for the wedding, is a rule that denies them any compensation really gendered? Gender ideology certainly influenced courts' decisions about what kinds of losses are compensable even if fathers and mothers of brides are equally disadvantaged by the rule, just as the related practice of giving dowries is gendered (and constitutes a source of gender discrimination) though parents - fathers, even - are the ones who formally bear the cost of a dowry. In fact, harm to men as well as women is a feature of many (arguably all) gender inequalities. Women have sons, fathers, husbands, and the like who suffer both emotionally and financially from discrimination against their female intimates.
193. See Karen Martin, Wedding Bills: So Who Pays for What? (visited Mar. 25, 1998) 〈http://www.khoo.com/dc-wedding/article10.htm〉. This custom appears to be in some flux - recent surveys suggest that the bride and groom increasingly pay, while the groom's parents are still unlikely to contribute. See Laura Koos-Feder, Wedding Season Ushers in Family Conflict, INVESTOR'S BUS. DAILY, May 19, 1997, at A1; Survey Reveals Brides' Wedding Gift Preferences, PR Newswire, Dec. 13, 1994, available in LEXIS, News Library, Arcnws File. Brides (and their families) seem to contribute more, even when both sides pay for parts of the wedding, though the evidence is not entirely clear. See Katherine Atwell-Herbert, Consultant Creates Dream Weddings, ARIZ. REPUBLIC, Jan. 4, 1998, at 4; Survey Reveals Brides' Wedding Gift Preferences, supra. Engaged women routinely seek advice on who should pay the expenses, and often receive the answer that tradition should not be followed and that both families should pay. Nonetheless, there seems to be an underlying expectation that brides' families are primarily responsible for expenses if they can afford the burden. See, e.g., Jessica Blackman Freedman & Alison Blackman Dunham, The Wedding Belles: Principles (visited Mar. 25, 1998) 〈http://www.blissezine.com/bel97101.htm〉; Deb McCoy, Frequently Asked Questions on Wedding Expenses (visited Mar. 25, 1998) 〈http://www .weddingpages.com/expert/faqexp.html〉. If a woman's parents, as is traditional, pay for the wedding, is a rule that denies them any compensation really gendered? Gender ideology certainly influenced courts' decisions about what kinds of losses are compensable even if fathers and mothers of brides are equally disadvantaged by the rule, just as the related practice of giving dowries is gendered (and constitutes a source of gender discrimination) though parents - fathers, even - are the ones who formally bear the cost of a dowry. In fact, harm to men as well as women is a feature of many (arguably all) gender inequalities. Women have sons, fathers, husbands, and the like who suffer both emotionally and financially from discrimination against their female intimates.
194. See Karen Martin, Wedding Bills: So Who Pays for What? (visited Mar. 25, 1998) 〈http://www.khoo.com/dc-wedding/article10.htm〉. This custom appears to be in some flux - recent surveys suggest that the bride and groom increasingly pay, while the groom's parents are still unlikely to contribute. See Laura Koos-Feder, Wedding Season Ushers in Family Conflict, INVESTOR'S BUS. DAILY, May 19, 1997, at A1; Survey Reveals Brides' Wedding Gift Preferences, PR Newswire, Dec. 13, 1994, available in LEXIS, News Library, Arcnws File. Brides (and their families) seem to contribute more, even when both sides pay for parts of the wedding, though the evidence is not entirely clear. See Katherine Atwell-Herbert, Consultant Creates Dream Weddings, ARIZ. REPUBLIC, Jan. 4, 1998, at 4; Survey Reveals Brides' Wedding Gift Preferences, supra. Engaged women routinely seek advice on who should pay the expenses, and often receive the answer that tradition should not be followed and that both families should pay. Nonetheless, there seems to be an underlying expectation that brides' families are primarily responsible for expenses if they can afford the burden. See, e.g., Jessica Blackman Freedman & Alison Blackman Dunham, The Wedding Belles: Principles (visited Mar. 25, 1998) 〈http://www.blissezine.com/bel97101.htm〉; Deb McCoy, Frequently Asked Questions on Wedding Expenses (visited Mar. 25, 1998) 〈http://www .weddingpages.com/expert/faqexp.html〉. If a woman's parents, as is traditional, pay for the wedding, is a rule that denies them any compensation really gendered? Gender ideology certainly influenced courts' decisions about what kinds of losses are compensable even if fathers and mothers of brides are equally disadvantaged by the rule, just as the related practice of giving dowries is gendered (and constitutes a source of gender discrimination) though parents - fathers, even - are the ones who formally bear the cost of a dowry. In fact, harm to men as well as women is a feature of many (arguably all) gender inequalities. Women have sons, fathers, husbands, and the like who suffer both emotionally and financially from discrimination against their female intimates.
195. See Karen Martin, Wedding Bills: So Who Pays for What? (visited Mar. 25, 1998) 〈http://www.khoo.com/dc-wedding/article10.htm〉. This custom appears to be in some flux - recent surveys suggest that the bride and groom increasingly pay, while the groom's parents are still unlikely to contribute. See Laura Koos-Feder, Wedding Season Ushers in Family Conflict, INVESTOR'S BUS. DAILY, May 19, 1997, at A1; Survey Reveals Brides' Wedding Gift Preferences, PR Newswire, Dec. 13, 1994, available in LEXIS, News Library, Arcnws File. Brides (and their families) seem to contribute more, even when both sides pay for parts of the wedding, though the evidence is not entirely clear. See Katherine Atwell-Herbert, Consultant Creates Dream Weddings, ARIZ. REPUBLIC, Jan. 4, 1998, at 4; Survey Reveals Brides' Wedding Gift Preferences, supra. Engaged women routinely seek advice on who should pay the expenses, and often receive the answer that tradition should not be followed and that both families should pay. Nonetheless, there seems to be an underlying expectation that brides' families are primarily responsible for expenses if they can afford the burden. See, e.g., Jessica Blackman Freedman & Alison Blackman Dunham, The Wedding Belles: Principles (visited Mar. 25, 1998) 〈http://www.blissezine.com/bel97101.htm〉; Deb McCoy, Frequently Asked Questions on Wedding Expenses (visited Mar. 25, 1998) 〈http://www .weddingpages.com/expert/faqexp.html〉. If a woman's parents, as is traditional, pay for the wedding, is a rule that denies them any compensation really gendered? Gender ideology certainly influenced courts' decisions about what kinds of losses are compensable even if fathers and mothers of brides are equally disadvantaged by the rule, just as the related practice of giving dowries is gendered (and constitutes a source of gender discrimination) though parents - fathers, even - are the ones who formally bear the cost of a dowry. In fact, harm to men as well as women is a feature of many (arguably all) gender inequalities. Women have sons, fathers, husbands, and the like who suffer both emotionally and financially from discrimination against their female intimates.
196. See Karen Martin, Wedding Bills: So Who Pays for What? (visited Mar. 25, 1998) 〈http://www.khoo.com/dc-wedding/article10.htm〉. This custom
197. See Karen Martin, Wedding Bills: So Who Pays for What? (visited Mar. 25, 1998) 〈http://www.khoo.com/dc-wedding/article10.htm〉. This custom appears to be in some flux - recent surveys suggest that the bride and groom increasingly pay, while the groom's parents are still unlikely to contribute. See Laura Koos-Feder, Wedding Season Ushers in Family Conflict, INVESTOR'S BUS. DAILY, May 19, 1997, at A1; Survey Reveals Brides' Wedding Gift Preferences, PR Newswire, Dec. 13, 1994, available in LEXIS, News Library, Arcnws File. Brides (and their families) seem to contribute more, even when both sides pay for parts of the wedding, though the evidence is not entirely clear. See Katherine Atwell-Herbert, Consultant Creates Dream Weddings, ARIZ. REPUBLIC, Jan. 4, 1998, at 4; Survey Reveals Brides' Wedding Gift Preferences, supra. Engaged women routinely seek advice on who should pay the expenses, and often receive the answer that tradition should not be followed and that both families should pay. Nonetheless, there seems to be an underlying expectation that brides' families are primarily responsible for expenses if they can afford the burden. See, e.g., Jessica Blackman Freedman & Alison Blackman Dunham, The Wedding Belles: Principles (visited Mar. 25, 1998) 〈http://www.blissezine.com/bel97101.htm〉; Deb McCoy, Frequently Asked Questions on Wedding Expenses (visited Mar. 25, 1998) 〈http://www .weddingpages.com/expert/faqexp.html〉. If a woman's parents, as is traditional, pay for the wedding, is a rule that denies them any compensation really gendered? Gender ideology certainly influenced courts' decisions about what kinds of losses are compensable even if fathers and mothers of brides are equally disadvantaged by the rule, just as the related practice of giving dowries is gendered (and constitutes a source of gender discrimination) though parents - fathers, even - are the ones who formally bear the cost of a dowry. In fact, harm to men as well as women is a feature of many (arguably all) gender inequalities. Women have sons, fathers, husbands, and the like who suffer both emotionally and financially from discrimination against their female intimates.
198. See Williams, supra note 57, at 1037, 1067. Williams analyzes the problem from an economic perspective, concluding that the gendered effects of the rule vary according to when the promise is broken. He cites research indicating that the average wedding costs $15,000, see id. at 1037 & n.132, and that the average engagement ring costs $3000, see id. at 1037 n.133. If the engagement is broken early on, allowing the woman to keep the ring overcompensates her for her reliance interests, but if it is broken later, keeping the ring will undercompensate her. See id. at 1067; see also Heiman v. Parrish, 942 P.2d 631, 640 (Kan. 1997) (Marquardt, J., dissenting) (decrying the no-fault result's abolition of liquidated damages for a woman).
199. See Bromley, supra note 27, at 9.
200. See ZELIZER, supra note 41, at 59-60; cf. id. at 68 ("[D]espite the prevalent assumption that her money is for personal frills while his money is communal property, in fact the wife's extra income is more likely than her husband's to be spent for family needs than on her personal needs.").
201. See id. at 65-66.
202. See id. at 3; see also id. at 18-19, 25 (discussing how people earmark money for different purposes, often determined by the contexts in which the money was received).
203. See id. at 20-21 (explaining that certain objects can serve as informal monies); cf. De Cicco v. Barker, 159 N.E.2d 534, 535 (Mass. 1959) (adopting the theory that the ring is a unique symbol of the pledge to marry); McIntire v. Raukhorst, 585 N.E.2d 456, 458 (Ohio Ct. App. 1989) (same).
204. See ZELIZER, supra note 41, at 78 (positing that "gifts . . . assume the long-term duration of a relationship"). Zelizer also notes that, according to etiquette advisors, gift-giving in engagements had to be carefully monitored, to prevent any implication that a woman was trading sexual services for expensive gifts, as a prostitute might. See id. at 99-101 (citing EMILY POST, ETIQUETTE 311 (1922)).
205. See ZELIZER, supra note 41, at 78 (positing that "gifts . . . assume the long-term duration of a relationship"). Zelizer also notes that, according to etiquette advisors, gift-giving in engagements had to be carefully monitored, to prevent any implication that a woman was trading sexual services for expensive gifts, as a prostitute might. See id. at 99-101 (citing EMILY POST, ETIQUETTE 311 (1922)).
206. Markewich, supra note 53.
207. See, e.g., Aronow v. Silver, 538 A.2d 851, 853-54 (N.J. Super. Ct. Ch. Div. 1987); McIntire, 585 N.E.2d at 457; Lyle v. Durham, 473 N.E.2d 1216, 1218 (Ohio Ct. App. 1984).
208. Cf. Lindh v. Surman, 702 A.2d 560, 565 & n.4 (Pa. Super. Ct. 1997) (Schiller, J., dissenting) (arguing that the no-fault rule may create an incentive for men to break engagements).
209. See, e.g., A.B. v. C.D., 36 F. Supp. 85 (E.D. Pa. 1940), aff'd, 123 F.2d 1017 (3d Cir. 1941); Boyd v. Boyd, 39 Cal. Rptr. 400 (Ct. App. 1964); Piccininni v. Hajus, 429 A.2d 886 (Conn. 1980); Thorpe v. Collins, 263 S.E.2d 115 (Ga. 1980); Waddell v. Briggs, 381 A.2d 1132 (Me. 1978); Thibault v. Lalumiere, 60 N.E.2d 349, 351 (Mass. 1945); Aronow, 538 A.2d at 856; Sulkowski v. Szewczyk, 6 N.Y.S.2d 97 (App. Div. 1938); Bruno v. Guerra, 549 N.Y.S.2d 925 (Sup. Ct. 1990); Snider v. Keenan, No. 92-J-39, 1994 Ohio App. LEXIS 535, at *1-3 (Ct. App. Feb. 11, 1994); Self v. Haddix, No. 9844, 1987 Ohio App. LEXIS 7324, at *1-3 (Ct. App. June 2, 1987); Ferraro v. Singh, 495 A.2d 946, 947-49 (Pa. Super. Ct. 1985). But see Langley v. Schumacker, 297 P.2d 977 (Cal. 1956) (allowing a fraud action where the plaintiff claimed that the defendant induced her to quit her job to marry him and then refused to get married); Perthus v. Paul, 58 S.E.2d 190 (Ga. Ct. App. 1950) (allowing a fraud action where the plaintiff quit his job and moved based on the defendant's false claim that she was free to marry); Jackson v. Brown, 904 P.2d 685, 687 (Utah 1995) (suggesting that a reliance theory might allow recovery of pre-wedding expenses where the defendant deceitfully concealed his marital status during the engagement); cf. Renshaw v. Renshaw, No. 0538427, 1997 Conn. Super. LEXIS 724 (Super. Ct. Mar. 21, 1997) (holding, in a divorce action, the defendant husband responsible for part of the wedding expenses incurred by the plaintiff wife before the marriage).
210. See Williams, supra note 57; see also D. Joseph Hurson, Case Note, 53 WASH. L. REV. 751, 755-56 (1978) (suggesting a regime allowing recovery of consequential and reliance damages only). Susie Steinbach, in her study of English breach-of-promise cases, has found that juries routinely took such preparations into account: Juries almost always awarded higher damages to women when their wedding day was planned and/or imminent. Presumably this reasoning had two parts: first, that preparations for a wedding celebration indicated the seriousness of the relationship, and second, that the canceling of a wedding added to the public humiliation the woman suffered (and increased the likelihood that questions would be raised about her character). In addition, a nearer wedding date probably meant that expensive preparations on the bride's behalf would have been made. If the date had been set, the bridesmaids chosen, the dress made, the bride-cake ordered, any or all of these things increased the damages and were of course stressed by the plaintiff's counsel. (Conversely, if these arrangements had not been made, the defense counsel would emphasize this as evidence that the courtship was not far advanced in an attempt to lower the damages awarded.) Susie L. Steinbach, Promises, Promises: Not Marrying in England 1780-1920, at 145-46 (1996) (unpublished Ph.D. dissertation, Yale University) (on file with the Yale University Library).
211. See Williams, supra note 57; see also D. Joseph Hurson, Case Note, 53 WASH. L. REV. 751, 755-56 (1978) (suggesting a regime allowing recovery of consequential and reliance damages only). Susie Steinbach, in her study of English breach-of-promise cases, has found that juries routinely took such preparations into account: Juries almost always awarded higher damages to women when their wedding day was planned and/or imminent. Presumably this reasoning had two parts: first, that preparations for a wedding celebration indicated the seriousness of the relationship, and second, that the canceling of a wedding added to the public humiliation the woman suffered (and increased the likelihood that questions would be raised about her character). In addition, a nearer wedding date probably meant that expensive preparations on the bride's behalf would have been made. If the date had been set, the bridesmaids chosen, the dress made, the bride-cake ordered, any or all of these things increased the damages and were of course stressed by the plaintiff's counsel. (Conversely, if these arrangements had not been made, the defense counsel would emphasize this as evidence that the courtship was not far advanced in an attempt to lower the damages awarded.) Susie L. Steinbach, Promises, Promises: Not Marrying in England 1780-1920, at 145-46 (1996) (unpublished Ph.D. dissertation, Yale University) (on file with the Yale University Library).
212. See Williams, supra note 57; see also D. Joseph Hurson, Case Note, 53 WASH. L. REV. 751, 755-56 (1978) (suggesting a regime allowing recovery of consequential and reliance damages only). Susie Steinbach, in her study of English breach-of-promise cases, has found that juries routinely took such preparations into account: Juries almost always awarded higher damages to women when their wedding day was planned and/or imminent. Presumably this reasoning had two parts: first, that preparations for a wedding celebration indicated the seriousness of the relationship, and second, that the canceling of a wedding added to the public humiliation the woman suffered (and increased the likelihood that questions would be raised about her character). In addition, a nearer wedding date probably meant that expensive preparations on the bride's behalf would have been made. If the date had been set, the bridesmaids chosen, the dress made, the bride-cake ordered, any or all of these things increased the damages and were of course stressed by the plaintiff's counsel. (Conversely, if these arrangements had not been made, the defense counsel would emphasize this as evidence that the courtship was not far advanced in an attempt to lower the damages awarded.) Susie L. Steinbach, Promises, Promises: Not Marrying in England 1780-1920, at 145-46 (1996) (unpublished Ph.D. dissertation, Yale University) (on file with the Yale University Library).
213. Williams, supra note 57, at 1061 (footnotes omitted); see also Llewellyn, supra note 113, at 711-12 (discussing the importance of symbolism in contract formation).
214. Williams suggests that emotional distress damages would generally not be recoverable because keeping the promise would lead to an at-least-as-traumatic bad marriage. See Williams, supra note 57, at 1055.
215. See id. at 1019, 1047.
216. Cf. supra text accompanying notes 58-61 (discussing cases in which physical abuse led women to break engagements).
217. Williams, supra note 57, at 1044;
218. see also Cathy C. Hadden, Note, Interspousal Gifts: Separate or Marital Property?, 32 U. LOUISVILLE J. FAM. L. 635, 656 (1994) (arguing that courts have generally looked to fairness rather than bright-line rules in awarding interspousal gifts upon divorce).
219. See Williams, supra note 57, at 1064.
220. See Wildey v. Springs, 840 F. Supp. 1259, 1266 (N.D. Ill. 1994) (discussing justifications for breach of promise), rev'd on other grounds, 47 F.3d 1475 (7th Cir. 1995).
221. LAW COMM'N, BREACH OF PROMISE OF MARRIAGE 9 (1969).
222. Id. at 10.
223. See id. at 10-11, 14. The Commission also felt that such a change in the law would cause more cases to be brought into court and would be unacceptable to the public because it would require courts to pry into the details of broken engagements. See id. at 11. It is interesting that the Commission found adjusting property transferred between the parties "of greater importance" than allowing recovery for wedding preparation expenses, id. at 14, because the objections it raised earlier - that testimony in such cases would be conflicting and would force courts to examine the intimate details of relationships, that a "community property" regime for engaged couples should be avoided, and that valuing contributions would be difficult, see id. at 10-11 - seem equally applicable to cases involving property given by one lover to another. If anything, such cases could present more difficulties, as courts would have to distinguish absolute gifts such as Christmas presents from gifts in contemplation of marriage.
224. See LAW REFORM COMM'N OF B.C., REPORT ON BREACH OF PROMISE OF MARRIAGE 25 (1983); MANITOBA LAW REFORM COMM'N, REPORT ON BREACH OF PROMISE To MARRY 23-24 (1984).
225. See LAW REFORM COMM'N OF B.C., REPORT ON BREACH OF PROMISE OF MARRIAGE 25 (1983); MANITOBA LAW REFORM COMM'N, REPORT ON BREACH OF PROMISE To MARRY 23-24 (1984).
226. LAW REFORM COMM'N OF B.C., supra note 148, at 25.
227. One author has suggested a version of this no-fault reliance regime: An extension of no-fault and quasi-contractual principles to this area would treat the couple as a partnership, equally bearing the economic burden of their unsuccessful endeavor. In allocating the expense of aborted wedding plans, gifts given during the engagement period between the parties could be claimed as a setoff, provided that the arrangement is mutually agreeable. Hurson, supra note 137, at 760-61 (footnote omitted).
228. Another possible no-fault regime would presume that an engagement ring constituted liquidated damages and would require a man to prove that retaining the ring would overcompensate his ex-fiancée. See Heiman v. Parrish, 942 P.2d 631, 640 (Kan. 1997) (Marquardt, J., dissenting); Barnes, supra note 88, at 30 ("I figured that if you tallied up all those lost deposits . . . and threw in my therapy bills, he still owed me several grand.").
229. See, e.g., Wright, supra note 17, at 365 ("Another fact doubtless influencing the old common law judges was that at that time most marriages had a money value based on the wealth of the parties.").
230. Stanard v. Bolin, 565 P.2d 94, 97 (Wash. 1977); see also Hanover v. Ruch, 809 S.W.2d 893, 894 (Tenn. 1991) (abolishing criminal conversation "because the action is founded upon a property-based theory which has no place in contemporary society").
231. Stanard, 565 P.2d at 97 (quoting HOMER H. CLARK, JR., THE LAW OF DOMESTIC RELATIONS IN THE UNITED STATES 2 (1968)).
232. Stanard, 565 P.2d at 97 (quoting HOMER H. CLARK, JR., THE LAW OF DOMESTIC RELATIONS IN THE UNITED STATES 2 (1968)).
233. The Virginia Slims American Women's Poll, conducted in 1974, 1979, and 1985, consistently showed that a substantial minority of men and women cited economic reasons as among the two or three most important reasons for marrying. See Public Opinion Online, 1989, Accession Number 0126354 (reporting that, in 1985, "economic security" was chosen by 8% of men and 14% of women, and "because you can share responsibilities, income, etc., and have an easier, more comfortable life" was chosen by 23% of men and 25% of women), available in LEXIS, Market Library, Rpoll File; Public Opinion Online, 1989, Accession Number 0118777 (reporting that, in 1979, "economic security" was chosen by 7% of men and 17% of women, and "shar[ing] responsibilities, income, etc." was chosen by 22% of men and women), available in LEXIS, Market Library, Rpoll File; Public Opinion Online, 1991, Accession Number 155471 (reporting that, in 1974, "economic security" was chosen by 7% of men and 14% of women, and "shar[ing] responsibilities, income, etc." was chosen by 21% of men and 23% of women), available in LEXIS, Market Library, Rpoll File.
234. See, e.g., Susan Squire, The Ideal Husband: What Does a Woman Want in a Partner?, HARPER'S BAZAAR, June 1997, at 152, 152-53 (reporting that many women still desire husbands who are economically successful and who make more money than their wives); cf. Robert Wright, Our Cheating Hearts, TIME, Aug. 15, 1994, at 45, 50 (discussing evolutionary psychology research suggesting that humans seek mates with high socioeconomic standing).
235. See, e.g., Susan Squire, The Ideal Husband: What Does a Woman Want in a Partner?, HARPER'S BAZAAR, June 1997, at 152, 152-53 (reporting that many women still desire husbands who are economically successful and who make more money than their wives); cf. Robert Wright, Our Cheating Hearts, TIME, Aug. 15, 1994, at 45, 50 (discussing evolutionary psychology research suggesting that humans seek mates with high socioeconomic standing).
236. See Terry Carter, 'She Done Me Wrong,' A.B.A. J., Oct. 1997, at 24, 24 (linking the resurgence of heartbalm actions to the recent adoption of "covenant marriage" in Louisiana); CNN Crossfire: Panel Discusses Punishment in Divorce Cases and Who's To Blame (CNN television broadcast, Aug. 7, 1997) (statement of Patrick Buchanan) (same), transcript available in LEXIS, News Library, CNN File (Transcript No. 97080700V20); see also Bearbower v. Merry, 266 N.W.2d 128, 134 (Iowa 1978) (arguing that the statutory waiting period for divorce indicated a legislative desire to protect marriage, which justified the retention of the action for alienation of affections).
237. See Terry Carter, 'She Done Me Wrong,' A.B.A. J., Oct. 1997, at 24, 24 (linking the resurgence of heartbalm actions to the recent adoption of "covenant marriage" in Louisiana); CNN Crossfire: Panel Discusses Punishment in Divorce Cases and Who's To Blame (CNN television broadcast, Aug. 7, 1997) (statement of Patrick Buchanan) (same), transcript available in LEXIS, News Library, CNN File (Transcript No. 97080700V20); see also Bearbower v. Merry, 266 N.W.2d 128, 134 (Iowa 1978) (arguing that the statutory waiting period for divorce indicated a legislative desire to protect marriage, which justified the retention of the action for alienation of affections).
238. See, e.g., RADIN, supra note 33, at 184-85; Cass R. Sunstein, Incommensurability and Valuation in Law, 82 MICH. L. REV. 779, 820 (1994).
239. See, e.g., RADIN, supra note 33, at 184-85; Cass R. Sunstein, Incommensurability and Valuation in Law, 82 MICH. L. REV. 779, 820 (1994).
240. See Daniel W. Shuman, The Psychology of Compensation in Tort Law, 43 KAN. L. REV. 39, 50-51 (1994).
241. See, e.g., Bearbower, 266 N.W.2d at 133.
242. Ted C. Fishman, The Law & Love: When Brokenhearted Lovers Hire Attorneys, PLAYBOY, Aug. 1994, at 46, 46 (emphasis added). Fishman predicts that "the suits will combine the worst aspects of rape and divorce trials." Id.; see also Ban the Balm, CHAPEL HILL HERALD, Oct. 12, 1994, at 4 ("The main problem with heart-balm suits is that they try to put a dollar figure on relationships."). As Radin points out, the incommensurability of suffering with dollars "is evidently worth big bucks to defendants." RADIN, supra note 33, at 196.
243. Ted C. Fishman, The Law & Love: When Brokenhearted Lovers Hire Attorneys, PLAYBOY, Aug. 1994, at 46, 46 (emphasis added). Fishman predicts that "the suits will combine the worst aspects of rape and divorce trials." Id.; see also Ban the Balm, CHAPEL HILL HERALD, Oct. 12, 1994, at 4 ("The main problem with heart-balm suits is that they try to put a dollar figure on relationships."). As Radin points out, the incommensurability of suffering with dollars "is evidently worth big bucks to defendants." RADIN, supra note 33, at 196.
244. Ted C. Fishman, The Law & Love: When Brokenhearted Lovers Hire Attorneys, PLAYBOY, Aug. 1994, at 46, 46 (emphasis added). Fishman predicts that "the suits will combine the worst aspects of rape and divorce trials." Id.; see also Ban the Balm, CHAPEL HILL HERALD, Oct. 12, 1994, at 4 ("The main problem with heart-balm suits is that they try to put a dollar figure on relationships."). As Radin points out, the incommensurability of suffering with dollars "is evidently worth big bucks to defendants." RADIN, supra note 33, at 196.
245. See, e.g., Cannon v. Miller, 322 S.E.2d 780, 800 (N.C. Ct. App. 1984) ("[T]here is no reason to believe the problem [of people using heartbalm actions to commit blackmail] is any less prevalent today."); Cindi Andrews, Love's Legal Loss, NEWS & REC. (Greensboro, N.C.), Aug. 16, 1997, at A1 ("'The existence of these causes of action provides the most effective and most commonly used tool of blackmail in any divorce . . . .'" (quoting University of North Carolina law professor Sally Sharp)); Carter, supra note 157, at 24 ("The case opens the door to collusion or fraud. . . . [A] wife and her ex-husband could set up a wealthy woman and sue."). But see Bearbower, 266 N.W.2d at 133-34 ("There is a palpable inconsistency between [the blackmail] argument and the frequent implication the remedy should be struck down because social mores now condone such extramarital activity. If so, there should be no hazard to a potential defendant's reputation, nor, for that matter, any danger of excessive jury verdicts."); Norton v. Macfarlane, 818 P.2d 8, 12 (Utah 1991) ("To a large extent, the basis for abuse has diminished as the Victorian attitudes toward sex have diminished and yielded to a much more frank and open attitude, as is evident from sexually explicit material regularly published . . . .").
246. See, e.g., Cannon v. Miller, 322 S.E.2d 780, 800 (N.C. Ct. App. 1984) ("[T]here is no reason to believe the problem [of people using heartbalm actions to commit blackmail] is any less prevalent today."); Cindi Andrews, Love's Legal Loss, NEWS & REC. (Greensboro, N.C.), Aug. 16, 1997, at A1 ("'The existence of these causes of action provides the most effective and most commonly used tool of blackmail in any divorce . . . .'" (quoting University of North Carolina law professor Sally Sharp)); Carter, supra note 157, at 24 ("The case opens the door to collusion or fraud. . . . [A] wife and her ex-husband could set up a wealthy woman and sue."). But see Bearbower, 266 N.W.2d at 133-34 ("There is a palpable inconsistency between [the blackmail] argument and the frequent implication the remedy should be struck down because social mores now condone such extramarital activity. If so, there should be no hazard to a potential defendant's reputation, nor, for that matter, any danger of excessive jury verdicts."); Norton v. Macfarlane, 818 P.2d 8, 12 (Utah 1991) ("To a large extent, the basis for abuse has diminished as the Victorian attitudes toward sex have diminished and yielded to a much more frank and open attitude, as is evident from sexually explicit material regularly published . . . .").
247. See, e.g., Cannon v. Miller, 322 S.E.2d 780, 800 (N.C. Ct. App. 1984) ("[T]here is no reason to believe the problem [of people using heartbalm actions to commit blackmail] is any less prevalent today."); Cindi Andrews, Love's Legal Loss, NEWS & REC. (Greensboro, N.C.), Aug. 16, 1997, at A1 ("'The existence of these causes of action provides the most effective and most commonly used tool of blackmail in any divorce . . . .'" (quoting University of North Carolina law professor Sally Sharp)); Carter, supra note 157, at 24 ("The case opens the door to collusion or fraud. . . . [A] wife and her ex-husband could set up a wealthy woman and sue."). But see Bearbower, 266 N.W.2d at 133-34 ("There is a palpable inconsistency between [the blackmail] argument and the frequent implication the remedy should be struck down because social mores now condone such extramarital activity. If so, there should be no hazard to a potential defendant's reputation, nor, for that matter, any danger of excessive jury verdicts."); Norton v. Macfarlane, 818 P.2d 8, 12 (Utah 1991) ("To a large extent, the basis for abuse has diminished as the Victorian attitudes toward sex have diminished and yielded to a much more frank and open attitude, as is evident from sexually explicit material regularly published . . . .").
248. See, e.g., Cannon v. Miller, 322 S.E.2d 780, 800 (N.C. Ct. App. 1984) ("[T]here is no reason to believe the problem [of people using heartbalm actions to commit blackmail] is any less prevalent today."); Cindi Andrews, Love's Legal Loss, NEWS & REC. (Greensboro, N.C.), Aug. 16, 1997, at A1 ("'The existence of these causes of action provides the most effective and most commonly used tool of blackmail in any divorce . . . .'" (quoting University of North Carolina law professor Sally Sharp)); Carter, supra note 157, at 24 ("The case opens the door to collusion or fraud. . . . [A] wife and her ex-husband could set up a wealthy woman and sue."). But see Bearbower, 266 N.W.2d at 133-34 ("There is a palpable inconsistency between [the blackmail] argument and the frequent implication the remedy should be struck down because social mores now condone such extramarital activity. If so, there should be no hazard to a potential defendant's reputation, nor, for that matter, any danger of excessive jury verdicts."); Norton v. Macfarlane, 818 P.2d 8, 12 (Utah 1991) ("To a large extent, the basis for abuse has diminished as the Victorian attitudes toward sex have diminished and yielded to a much more frank and open attitude, as is evident from sexually explicit material regularly published . . . .").
249. See supra note 38 and accompanying text.
250. See, e.g., Bearbower, 266 N.W.2d at 138 (McCormick, J., dissenting in part) (arguing that heartbalm torts encourage people to avoid responsibility for their own mistakes in intimate relations by blaming someone else); Heiman v. Parrish, 942 P.2d 631, 638 (Kan. 1997) ("Litigating fault for a broken engagement would do little but intensify the hurt feelings and delay the parties' being able to get on with their lives."); Felsenthal v. McMillan, 493 S.W.2d 729, 731-32 (Tex. 1973) (Steakley, J., dissenting) ("[A]n award of damages [for alienation of affections] will neither alleviate emotional distress nor strengthen marital ties. . . . [A] contested trial will almost certainly destroy any chance the spouses might otherwise have to reestablish a meaningful marital relationship."); Bonnie Erbe, Jilted Wife Wins in Court, Loses in Life, ROCKY MOUNTAIN NEWS (Denver), Aug. 16, 1997, at 60A; Ray Recchi, Jury Can't Measure Price of Heartbreak, SUN-SENTINEL (Ft. Lauderdale), Aug. 19, 1997, at 1E.
251. See, e.g., Bearbower, 266 N.W.2d at 138 (McCormick, J., dissenting in part) (arguing that heartbalm torts encourage people to avoid responsibility for their own mistakes in intimate relations by blaming someone else); Heiman v. Parrish, 942 P.2d 631, 638 (Kan. 1997) ("Litigating fault for a broken engagement would do little but intensify the hurt feelings and delay the parties' being able to get on with their lives."); Felsenthal v. McMillan, 493 S.W.2d 729, 731-32 (Tex. 1973) (Steakley, J., dissenting) ("[A]n award of damages [for alienation of affections] will neither alleviate emotional distress nor strengthen marital ties. . . . [A] contested trial will almost certainly destroy any chance the spouses might otherwise have to reestablish a meaningful marital relationship."); Bonnie Erbe, Jilted Wife Wins in Court, Loses in Life, ROCKY MOUNTAIN NEWS (Denver), Aug. 16, 1997, at 60A; Ray Recchi, Jury Can't Measure Price of Heartbreak, SUN-SENTINEL (Ft. Lauderdale), Aug. 19, 1997, at 1E.
252. See, e.g., Bearbower, 266 N.W.2d at 138 (McCormick, J., dissenting in part) (arguing that heartbalm torts encourage people to avoid responsibility for their own mistakes in intimate relations by blaming someone else); Heiman v. Parrish, 942 P.2d 631, 638 (Kan. 1997) ("Litigating fault for a broken engagement would do little but intensify the hurt feelings and delay the parties' being able to get on with their lives."); Felsenthal v. McMillan, 493 S.W.2d 729, 731-32 (Tex. 1973) (Steakley, J., dissenting) ("[A]n award of damages [for alienation of affections] will neither alleviate emotional distress nor strengthen marital ties. . . . [A] contested trial will almost certainly destroy any chance the spouses might otherwise have to reestablish a meaningful marital relationship."); Bonnie Erbe, Jilted Wife Wins in Court, Loses in Life, ROCKY MOUNTAIN NEWS (Denver), Aug. 16, 1997, at 60A; Ray Recchi, Jury Can't Measure Price of Heartbreak, SUN-SENTINEL (Ft. Lauderdale), Aug. 19, 1997, at 1E.
253. CNN Crossfire: Panel Discusses Punishment in Divorce Cases and Who's To Blame, supra note 157 (statement of Nadine Strossen).
254. See Ellman, supra note 9, at 821 (discussing cases taking this view); Woodhouse & Bartlett, supra note 9, at 2528 (same).
255. See Ira Mark Ellman & Sharon Lohr, Marriage as Contract, Opportunistic Violence, and Other Bad Arguments for Fault Divorce, 1997 U. ILL. L. REV. 719, 734; Carl E. Schneider, Marriage, Morals, and the Law: No-Fault Divorce and Moral Discourse, 1994 UTAH L. REV. 503, 556.
256. See Ira Mark Ellman & Sharon Lohr, Marriage as Contract, Opportunistic Violence, and Other Bad Arguments for Fault Divorce, 1997 U. ILL. L. REV. 719, 734; Carl E. Schneider, Marriage, Morals, and the Law: No-Fault Divorce and Moral Discourse, 1994 UTAH L. REV. 503, 556.
257. See Regan, supra note 5, at 2314 & n.39. Regan argues that a good reform would be to make the legal consequences of marriage extend beyond the moment of divorce, so that dissolution would take place over time. In particular, economic responsibility would continue after divorce. See id. at 2388. The same argument could be made for the relationship before the legal marriage date. Before the marriage ceremony, the marriage itself lacks reality; yet people who are formally engaged expect to get married and do not expect to get divorced.
258. See Carol M. Rose, Rhetoric and Romance: A Comment on Spouses and Strangers, 82 GEO. L.J. 2409 (1994). Property analysis, Rose argues, should be applied in intimate relations because property talk helps people take their acts seriously. See id. at 2420. People interested in family law should not pretend that property loses its normal characteristics when love and intimacy are involved: "Are diamonds a girl's best friend? Of course not. But they aren't chopped liver either, and the whereabouts of the diamonds (or property generally) may play a substantial role even in the context of intimate relations." Id. at 2421.