Yesterday, in the midst of a billion stories about the US News law school rankings (and we helped!), the ABA Journal ran a story about how more and more people are getting married on the internet. Trust us, there’s a connection.
It’s apparently becoming increasingly popular for foreign marriages. Marriage via the internet is sort of like a marriage by proxy. According to the ABAJ, some critics are concerned that this type of marriage will be used by human traffickers, who will use them to bring women into the country and then force the women into prostitution. And we all know the fierce stance the ABA is taking on human trafficking these days. (If you don’t know, it’s anti-trafficking.)
And it just wouldn’t be a legal issue without an inane opinion from a law professor. Here comes Michigan State University law professor Adam Candeub with some reservations:
Part of the reason for having the two people come and appear before a priest or a judge is to make sure it is a freely chosen. There are some problems with willy-nilly allowing anyone around the world to marry.
First, we’ve seen the Princess Bride, and there was absolutely no checking by the priest that Buttercup was marrying Humperdink because she “freely chose” it. Sure wuv, twoo wuv is nice, but when push comes to shove, we’re all too willing to jump to man-and-wife, plans to murder your partner in that dweam within a dweam notwithstanding.
Second, why don’t you tell us how you really feel, Adam? People shouldn’t be allowed to marry “willy-nilly”? If you haven’t noticed, the mood of the day, especially common among the educate elite, is towards marriage freedom. (And way to go Colorado!) Marriage is an agreement between two consenting adults, and that’s pretty much it. Not between two consenting adults who have courted for a suitable length of time and have the consent of both parties’ parents. Candeub would have done more to undermine the marriage between Jane and Bingley than Darcy ever did.
Here’s a question for you, Professor. If you’re so concerned about people making major decisions with life-long consequences willy-nilly, and worst of all online, why don’t you ask Michigan State’s admissions office to require students to come on campus to accept their admissions offer and pay their first semester’s tuition? You wouldn’t want people enrolling in law school willy-nilly, especially considering that they will be paying back their loans for much longer than the average marriage lasts, and have more debt than the typical divorce settlement value.
And law school is hardly the biggest thing you can commit to online or by proxy. People are getting their auto insurance online now, and their health insurance, and auto insurance. You can form a corporation by mail, a process so common that there’s a whole industry of registered agents to stand in for absentee owners. We have the whole ESIGN Act governing electronic agreements, and for good reason. It’s not just $7 Netflix payments and $9 Kindle book orders being made in abstentia. Corporations are largely governed by proxy votes, and billion dollar deals can be closed by fax. Whatever the agreement is, long ago we realized that what matters is the intent of the parties to be bound; the form of that agreement is irrelevant:
It makes no difference whether that operator writes the offer or the acceptance . . . with a steel pen an inch long attached to an ordinary penholder, or whether his pen be a copper wire a thousand miles long. In either case the thought is communicated to the paper by the use of the finger resting upon the pen; nor does it make any difference that in one case common record ink is used, while in the other case a more subtle fluid, known as electricity, performs the same office.
That’s from Howley v. Whipple, a case that went before the New Hampshire Supreme Court in 1869. It’s still good law. The cat is out of the bag, professor. What makes sense is not trying to get in the way of online marriages, but figure out how to make the system better. If you’re worried about coercion, require a judge to sign off on the marriage on both ends. If you’re worried about people getting married without really thinking through what that means, then learn to cope, because it’s 2013 and we’re allowed to make bad decisions with our lives. The number of people relying on US News to make law school enrollment decisions is proof of that.