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Charles Pick's avatar

David Friedman's article is excellent. I have a couple comments about conceiving of marriage as a contract for the purposes of economic analysis. Traditionally, marriage has often been called a covenant. In the modern era, we often do call marriage a contract, but then we do not apply most contract concepts, defenses, or notions of breach to marriage. Marriage even in the modern conception is more like a covenant because just as covenants attached to land "run with the land," marriage has implications that "run with the blood" in every state. In the legal world, there's also a dialectic between the so-called "support theory" of marriage and the "partnership theory" of marriage. Friedman does get into this a little bit. Support theory is on the outs, but there are many old cases for failure to support along the same lines that you would see a child support case and adjudicated similarly. Some of the older cases even sound in criminal law on the same theory as child neglect (if you neglected your wife's upkeep and she died of tuberculosis, you're in trouble).

So with marriage we have something that was traditionally an inviolable covenant that became subject to many additional caveats and contracts. You still have many covenant aspects that particularly come into play in the law of inheritance (your obligations and property run with your blood by default, and even trying to override it by will or trust can subject you to various challenges). Today, your duties to your children are conceived of as statutory duties commanded by the state, but you could also arrive at the same point by interpreting them as deriving from the marriage covenant, merely observed and enforced by the state. To add also to his citation of the Brinig article, there also used to be (now mostly abrogated) causes of action against seducers on the basis of alienation of affection, which is the subject of some other law review articles, some of which are cited there. Then you also have to consider the laws against sodomy and fornication which, while always lightly enforced going back to medieval times, could always be used to dissuade caddishness and increase the bargaining power of a party that wished to broker a shotgun marriage.

Unfortunately, all of this makes it hard to analogize marriage to other things accurately. Marriage isn't like a contract because very few contract concepts apply to it. Marriage isn't like a covenant either because it can be dissolved relatively straightforwardly if it is not contested. It's not like a partnership because there is no joint and several liability for all partners or any concept of what's in the scope of the partnership and what's not. Marriage is its own little cul-de-sac of horrors and delights.

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Brandon Hendrickson's avatar

My understanding is that risks for autism go up for both older moms and dads. From a 2024 meta-analysis: “The findings showed that older parents are more likely to have children who develop autism.” (https://bmcpsychology.biomedcentral.com/articles/10.1186/s40359-024-02184-9) I’ll admit that deciphering these sorts of articles is not my speciality, but ChatGPT tells me that the specific rate it reports is about 20% extra risk per each 5 years of age (for one parent? both? I’m not sure).

I haven’t looked this up for ADHD, but the two conditions are hella correlated, so I’m guessing we’d find the same thing.

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