Public Policing of Intimate Agreements

Abstract

Decisions like the one to bear or beget a child, to enter into or disentangle oneself from a long-term relationship or marriage, or to allocate resources and duties within a family unit are often treated as core choices constitutive of a person's identity. But many of these individually constitutive decisions necessarily involve the cooperation of others. One might therefore suspect that contract law-which operates to fix parties' mutual commitments-would be a useful tool for securing greater certainty regarding these important decisions. Nevertheless, courts have often refused to enforce agreements between intimates concerning such decisions on the grounds that they violate public policy. This Article criticizes the use of the public policy doctrine to avoid enforcement of intimate agreements.