Note

Reviewing Premarital Agreements to Protect the State’s Interest in Marriage

Courts and commentators have struggled with the question of whether substantive review of premarital agreements is necessary and, if so, why. Those who eschew substantive review generally equate it with legal paternalism. To the extent that the justification for substantive review rests on notions of cognitive limitations and bounded rationality, it is subject to the criticisms of legal paternalism in general.

Stronger support for substantive review can be found in notions of the public interest in marriage. Furthermore, a focus on the state’s interest in marriage would enable lawmakers to more narrowly tailor the scope of review to protect that interest without unnecessarily infringing on the freedom to contract. The question of the state’s interest in marriage can be defined prospectively and in more concrete terms than the question of whether the parties made a rational decision.

This Note begins by reviewing the historical and current status of premarital agreements concerning the division of property and provision of support following divorce. An analysis of recent court decisions and legislation reveals the extent to which the law continues to monitor the substantive fairness of premarital agreements. Next, the Note examines the arguments for and against paternalism in the premarital context by reviewing recent scholarship on behavioral decision theory. It concludes that procedural safeguards can adequately protect against irrational decisionmaking. Finally, the Note looks at the state’s interest in marriage, how premarital agreements implicate that interest, and ways to efficiently protect that interest.

How Automobile Accidents Stalled the Development of Interspousal Liability

This Note analyzes the development of interspousal tort liability for personal harms following the enactment of the married women’s property acts. The case law is broken down into three periods (1) the 1860s through 1913, when all courts hearing interspousal torts barred them; (2) 1914 through 1920, when a trend permitting the claims developed; and (3) 1921 through 1940, a period in which the seemingly inevitable evolution toward allowing the suits stalled. The existing literature characterizes the law as illustrating a continuing judicial desire to impose patriarchal restrictions on women’s rights and blames the third-period reversal on the stagnation of the women’s movement following ratification of the Nineteenth Amendment. In contrast, this Note removes the case law from the realms of conventional feminist analysis and women’s history. The women’s movement had no direct influence over judicial construction of the married women’s acts, and the alleged post-suffrage stagnation is itself questionable. Instead, this Note suggests that the trend allowing interspousal torts was complicated by the emergence of a new fact pattern: negligent automobile accidents. Following decades of willful tort suits, automobile negligence suits brought the risk of insurance fraud and collusion, which consequently halted judicial willingness to allow them. Because willful and negligent torts were legally indistinguishable based on the text of the statutes, judicial refusal to allow negligent torts translated into a complete bar on interspousal liability.

Patent Claim Construction

In 1998, the Federal Circuit decided Cybor Corp. v. FAS Technologies, holding that patent claim construction was a purely legal issue subject to de novo appellate review. This highly controversial decision has since become the focus of intense scrutiny and empirical studies exposing the problematic nature of de novo review. In November 2006, the Federal Circuit issued a divided opinion indicating its most significant movement towards reconsidering Cybor, prompting some observers to forecast the impending demise of de novo review.

This Note introduces Chevron deference as the proper standard of review for patent claim construction. A default rule adopting the narrowest reasonable claim interpretation would serve as a valuable information-forcing adjunct. Together, these rules would simultaneously address the inefficiency, indeterminacy, and information costs that currently plague the patent system. Ultimately, this proposal would achieve sweeping, multi-institutional patent reform from both ex ante and ex post perspectives.

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