Sunday, January 02, 2011

Mae Kuykendall: "E-Marriage--Emerging Trends Meet the Law"; Panel Presentation at the 2011 AALS Annual Meeting

Every year for the last several years, the leadership of the Association of American Law Schools  solicits  panels for presentation on is judged to be sufficiently timely and important issues of general importance to merit special presentation.  My colleague, Mae Kuykendall of Michigan State University, organized one of these presentations that reflects path breaking work in this area of the regulation of human behavior by the state, and cultural accommodation of this regulatory impulse. 

Hot Topics Panel at the AALS
E-Marriage:  Emerging Trends Meet the Law

Mae Kuykendall          (MSU College of Law)                 Moderator
Adam Candeub          (MSU College of Law)                 Presentation of the E-Marriage Concept
Larry Ribstein            (Illinois College of Law)               Critical Analysis
Anita Bernstein          (Brooklyn Law College)                Commentary on Marriage Essentials
Monu Bedi                (Stetson School of Law)               The Military Context
Aviva Abramovsky     (Syracuse College of Law)            State Export of Other Legal Arrangements
June Carbone            (UMKC School of Law)                 Redefining Law and Geography

Background is available at the Legal E-Marriage website:     It includes a working paper first posted on SSRN in October 2009, advocating full modernization of the historical precedent of proxy marriage through the use of modern communications technology, and forthcoming in the University of Michigan Journal of Law Reform.

The panel explores the likelihood that technology, modern-day mobility, and patterns in affiliation will produce increasing numbers of marriage formalizations that do not strictly conform to a requirement of physical presence by all parties in the granting jurisdiction.  Technology likely will be increasingly seen as a natural means of accessing laws across jurisdictions and for deepening ceremonial moments by combining across distance the factors that the parties value.  For gay couples, the factors driving interest in distance marriage ceremonies are the embargo in many states on official marriage for them and their wish for the presence in their home city of friends and family for a formal, "real" ceremony.  For other couples, the factor could be a wish to have a marriage in their new home location, with a religious figure from their childhood presiding by remote connection.  For couples who are separated by distance, combined with military duties, illness, or limited means, the factor is the ability to marry when the time and need for their marriage has become apparent to them.  Other couples would like to do destination weddings to exotic locales, but still rely upon the marriage procedures and official recordation of their home state.  The likely trend, the history of marriages across borders and the existing scholarship on the importance of the state's playing a facilitative role given its monopoly over marriage access, and the need for consistency, clarity, and predictability in state treatment of marriages that depart from the letter of the statutes will be examined and assessed against critique.

Among the issues the panel will explore are 1) the practical value to a couple of an official marriage ceremony in a state that will deny recognition to the marriage, 2) the potential for backlash in the instance of gay marriage, 3) the legal and long-term cultural acceptability of limiting relief from the physical presence requirement to couples either chosen by state statutory law (active duty military, prisoners, the moribund) or clerk discretion, 4) prudent forms that state legislation might take, 5) the incentives for states to pass legislation modernizing marriage procedure for a mobile society, and 6) the risks that states will withhold recognition to marriages on the basis of the procedure, despite being willing to recognize the substance, of a marriage authorized by another state.

Program:      Hot Topic Program - E-Marriage: Emerging Trends Meet the Law
Date/Time:  01/07/2011, 4:00 pm-5:45 P. M.
Place:            Hilton (Room Not Yet Known; please note that the AALS organizers assigned the panel to this room).


The Legal E-Marriage Project, created by MSU Law Professors Mae Kuykendall and Adam Candeub, is a clearinghouse for legislative proposals to institute "e-marriage," potentially altering the landscape of the marriage culture wars and solving the problems that arise when a great distance separates couples who wish to marry. Those interested would profit by reading the excellent article: Candeub, Adam and Kuykendall, Mae, E-Marriage: Breaking the Marriage Monopoly (March 2, 2010). MSU Legal Studies Research Paper No. 07-25. 
Here is the abstract: Abstract:
Debates over marriage have focused on culturally contested marriages, such as those between same-sex couples. These controversies involve evaluations of marriage as a social practice, its oversight by the state, and its constitutional significance. They distract attention from the statutes that prescribe the mechanics for getting married. Such neglect is odd given lawyers’ keen sensitivity to the relationship between procedure and substantive outcomes and unfortunate given the archaic nature of marriage formation law.

States inadvertently have created territorial monopolies for marriage formation law, requiring each marriage receiving the benefits of their licensing laws to be performed within their borders. This seems anomalous, given states’ routine provision of legal status, such as incorporation, to those out-of-state. Building upon precedents such as proxy marriage and choice of law for multi-jurisdictional contracts and relying on the Internet’s power to reduce transaction costs, we argue that states can and should authorize weddings in any location. Depending on a couple's preferences for “e-ritual” and a state’s desired level of regulatory control, a couple could have a traditional marriage ceremony in the location of their choice, but would receive a license and file necessary papers with a distant state jurisdiction or, perhaps employ an officiant in the authorizing state using teleconferencing or Skype.

Our proposal increases the number of providers of the status good of marriage as well as its enabling regulations. Even if e-marriage cannot provide a legally enforceable relationship in every state because some states do not recognize types of marriages that other states authorize, i.e., Massachusetts same-sex marriage or Louisiana covenant marriage, e-marriage allows all couples to enjoy the psychic benefits of celebrating their weddings before family, friends, and community and the status good of marriage. E-marriage may spur jurisdictional competition to create more convenient marriage formation law that also better fulfills the regulatory goals of encouraging prudent decision-making—an important reform given the states’ haphazard, even useless marriage formation regulations. Finally, our proposal creates a federalist compromise to moderate protracted political and judicial struggles over substantive marriage rules. Convenience and efficiency in marriage formation law animates our proposal; we look to federalism as the engine.

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