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Response or Comment


Rhetoric and Romance: A Comment on Spouses and Strangers, 82 Georgetown Law Journal 2409 (1994)


Writing this comment was a hard task. I very much admire Milton Regan's Spouses and Strangers. It is a significant exploration of the impact of some kinds of property analysis and "human capital" thinking on the distribution of family assets at divorce. Why, then, was this comment a hard task? It was difficult because my own views diverge so dramatically from Professor Regan's, on the very subject that lies at the heart of his analysis. That subject is the rhetoric of property. My comment will focus particularly on our differences, and they are indeed substantial. Nevertheless, I regard Professor Regan's work as a very important contribution.

My overriding concern is that Professor Regan's article argues far too extensively from a rigid and misleading view of property itself. As a general matter, I will stress two themes: first, that the institution of property is far more supple than Professor Regan suggests, and second, that property analysis is far less malignant than he seems to think, even in the context of intimate relations. More specifically, I am concerned that by treating property as he does—as a matter for strangers—Professor Regan is contributing to a romantic separation of home from work, and that his own writings will end up committing the very error that he attributes to property rhetoric: marginalizing women and the work they do. For that reason, I would like to invite Professor Regan and his readers to think again about this matter, and to reconsider whether property might not deserve considerably more attention as a flexible and eminently helpful intellectual tool to open up the subject of disposition of marital assets at divorce.

I will begin with a few words about the general subject of the rhetoric of property, and then examine the alternatives to property rhetoric that Professor Regan presents—alternatives that do not seem to me to move all that far from property. I will then take up and attempt to rebut what I believe are his three major critiques of property rhetoric: first, that property rhetoric is inadequate to explain the gendered distribution of assets at divorce; second, that property rhetoric does not or cannot help in arriving at a more just distribution of those assets; third and last, that property rhetoric is normatively inferior to other approaches to this intensely intimate set of social relations. As readers will see, I disagree vehemently on all these points because—to return to my main concern—I think that Professor Regan's exposition almost entirely overlooks a much broader, more interesting, and more realistic understanding of the possibilities of property.

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