Are premarital agreements categorically unfair? Critics of premarital agreements cling to the (unfounded) belief that premarital agreements are categorically one-sided, coercive, and designed to benefit the wealthier spouse — usually the man. Courts, legislators, and scholars have too often relied on assumptions about premarital agreements without delving in to the facts. They have looked almost everywhere to support their views, except for the one place that really matters: the actual agreements. The result, predictably, is a paternalistic system predicated on a near religious belief that women who sign premarital agreements are uneducated, unsophisticated, economically dependent actors who need the state to protect them from the overreaching of their husbands and their own stupidity. For the few women this paternalistic system might protect, it harms a great many more by reinforcing negative stereotypes and eroding individual autonomy. This paper builds on my previous work and offers something that has been sorely lacking in the field — empirical data. This paper presents my initial findings of a study involving all of the premarital agreements between opposite-sex couples recorded in Jefferson Parish, Louisiana between January 1, 2013 and December 31, 2016 — a total of 474 premarital agreements. My findings cast considerable doubt upon many of the stereotypes about the parties that enter into premarital agreements. The quintessential stereotype of a couple with a premarital agreement is the rich businessman and his (much) younger “trophy” bride. For the couples in this study, however, large age discrepancies are the exception rather than the rule. We have long assumed that premarital agreements are most common in second marriages. Although that is generally true for the couples in this study, the reality is a good deal more nuanced. Nearly a quarter of the agreements in this study were entered into by two spouses with no prior marriages. Longstanding assumptions about substance and procedure are also challenged by my study. We have been suspicious of premarital agreements that are signed shortly before the wedding out of fear that they result from duress or coercion. Yet, the vast majority of the couples in this study signed their agreements shortly before their weddings. Isn’t it more likely that these couples procrastinated rather than coerced? We have long assumed that premarital agreements involve the waiver of property rights and spousal support by the poorer spouse for the benefit of the richer spouse. Again, the data paint a more complex and interesting picture.
This essay represents one of several Case Studies to be published soon as the Movement Lawyering Roundtable Symposium by Hofstra Law Review. The Case Studies were developed within a roundtable of movement lawyers, community organizers, and legal ethics experts convened in March, 2018 by the Monroe H. Freedman Institute for the Study of Legal Ethics at Hofstra University’s Maurice A. Deane School of Law. This Case Study addresses the ethical tensions encountered by movement lawyers and community organizers engaged in public interest litigation. The Study consists of three topics, with resulting ethics analyses of the issues that arise in the differing settings. The first involves questions of financing the broad work of a community organizing client, while honoring the mandates of the rule of professional conduct prohibiting a lawyer from offering financial assistance to clients in litigation. The second issue addressed how lawyers might share attorneys’ fees awards with community groups who are ongoing clients. The third issue pivots to questions of how movement lawyers might counsel community organizations about disagreements with other pro bono lawyers representing the clients. Each of these sets of legal ethics issues arises in movement lawyering practice, and can be confounding. This essay seeks to offer guidance to lawyers navigating these sometimes delicate ethical waters.
Courts lack consistency and coherence in admissibility decisions regarding expert testimony based on economic models. Legal commentators have addressed the issue, but their conclusions range from treating questions about economic models as law to treating them as routine fact-finding. Evidence law bases admissibility upon the standards of the relevant field, and a substantial body of scholarship by economics methodologists conceives of models as tropes and economists as storytellers. Accordingly, models should be evaluated in the context of their use and by their target audience, which in complex litigation is the jury. The economics scholarship therefore supports a lower admissibility threshold because challenges to the choice of underlying studies, excluded variables, and simplifying assumptions go to credibility.
