Regulatory Fictions: On Marriage and Countermarriage

39 Pages Posted: 17 Apr 2011

Date Written: April 13, 2011


Debates about marriage currently capture much public attention. Scholars have pushed beyond the question of whether gays are worthy of marriage to ask whether marriage is worthy of gays. The present moment of questioning marriage in its current form may be brief. Thus, we should take this opportunity to imagine the widest possible range of alternatives to our current marriage regime - what I call countermarriage regimes. This Essay draws on two unlikely sources of legal innovation to expand our thinking about marriage alternatives: literature and anti-gay law. Literature offers an array of countermarriage regimes, including exploding marriage, three-strikes marriage, line marriage, renewable marriage, and exculpatory marriage. Anti-gay law, if we reimagine it as applying to everyone, prompts us to consider a world without marriage or indeed without any contracts between intimate partners. In addition to opening our minds to countermarriage possibilities, this Essay shows some overlooked affinities between law and literature, in particular how both law and literature may serve as unlikely sources of regulatory innovation.

Suggested Citation

Emens, Elizabeth F., Regulatory Fictions: On Marriage and Countermarriage (April 13, 2011). California Law Review, 2011, Columbia Public Law Research Paper No. 11-268, Available at SSRN:

Elizabeth F. Emens (Contact Author)

Columbia Law School ( email )

435 West 116th Street
New York, NY 10025
United States

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