Fossil Law

The talk I described in my previous post dealt with a problem at the intersection of federal tax law and state marriage law. Thinking about it, it occurred to me that the problem was in part due to the existence of fossil law—legal rules that once made sense but no longer did.

Let me start with a science fictional example. At present, it is a safe assumption that most twelve year olds know less and are less mature than most adults. Given that, it makes sense to base legal rules such as who gets to vote or who is able to sign a binding contract on chronological age—despite the fact that some twelve year olds, such as one who was a baby sitter for our daughter when she was little, are more mature than some adults. The alternative would be considerably more complicated rules, requiring a larger element of discretion by whomever had the job of interpreting them.

Suppose the situation changes—genetic engineering, mind drugs, radically improved educational techniques, or the like, result in most twelve year olds being mentally and emotionally the equivalent of adults. The old laws might remain, for a while, despite the disappearance of the facts that had justified them.

For a real world example, consider the question of who counts as a child's parents. The old rule was that the mother was the woman from whose body the child was born, the father that woman's husband if she had been married and cohabiting with him at the time the child was conceived. The first part made obvious sense, the second served to eliminate legal controversies at a time when there was usually no better way of establishing paternity.

Neither rule makes sense any longer. The woman from whose body a child is born may be a host mother carrying another woman's egg. Paternity testing makes it possible to prove, beyond any reasonable doubt, that a particular man is or is not the child's father. The law has to some degree altered to take account of those changes, as in the California case of the child with five parents; the court ignored the literal implication of existing law and concluded that the couple with parental rights and responsibilities was the couple who had arranged for the child to come into existence, not the egg donor, sperm donor, or host mother. Adapting rules of child support to the existence of paternity testing has proved harder, probably because the relevant authorities are more concerned with finding some man to hold responsible for child support than with finding the right man.

Coming back to where I started, consider the same issue in the context of the tax treatment of married couples. Back when the federal income tax was created, and later when it was modified to permit joint returns, the typical married couple consisted of two people, one of whom was the principal money earner, the other responsible for running the household and bearing and rearing the couple's childen. Most married couples fit that pattern, and most couples that fit that pattern were married. The legal and social sanctions against unmarried sex, still more unmarried motherhood, were strong enough to discourage, for most couples, the option of separating the legal status of marriage from the reality of the relationship.

Even then, the map did not perfectly fit the territory. There were married couples where both parties were employed, there were households with the marital division of labor (minus the child bearing part) whose members were not married to each other—a parent and his or her adult child living together, two siblings, or some similar pairing. And there were some couples living in sin—married in fact but not in law, although if they were in a state that recognized common law marriage that might be only a temporary situation.  

But the standard model of marriage worked well enough so that it may have made sense to base tax rules concerning marriage on the assumption that all marriages fit that pattern, and everything that fit that pattern was a marriage. And unless the rules provided a really large penalty or bonus to being married, for most people that decision would be determined by other and more important considerations, so the IRS did not have to worry too much about tax rules driving people into or out of marriage.

None of that is true any longer. That suggests that, however the tax law chooses to deal with households in which individuals share, in some form, income and the work of household production, the defining rule should probably not hinge on whether the household members are legally married to each other. Which, among other things, would eliminate the problems associated with same sex couples that were the subject of my colleague's talk.

For a very different example of the  problem, consider the crime of statutory rape, sex with an underage partner. In legal theory, criminal liability requires intent. In practice, statutory rape is a strict liability crime. Even if the offender did not know the age of his partner, even if the partner fraudulently misrepresented her age, perhaps with the assistance of a borrowed driver's license, the adult partner is potentially liable for a serious felony. That, at least, is my understanding of the law—readers who are better informed are welcome to correct it.

Sixty years ago, before the pill and the sexual revolution that it helped to produce, that did not represent a serious problem from the standpoint of the legal authorities. It was true that it meant that someone engaged in non-marital sex with a relative stranger was at risk of committing a serious crime without knowledge or intent. But non-marital sex, especially with relative strangers, was not something that the relevant authorities had any objection to discouraging.

For an example of that attitude a little earlier, consider the explanation of the "usefulness" requirement in patent law offered by a prominent 19th century jurist. He explained that there was no reason not to grant a patent on something of no use to anyone, since nobody would have any reason to infringe it. What the requirement was intended to prevent was the patenting of inventions that were positively pernicious—such as a device to facilitate private assassination—Judge Story apparently anticipated James Bond, the CIA, and targeted drone strikes—or debauchery. 

Modern patent law imposes a more stringent interpretation of the usefulness requirement, but it would be hard to argue that devices to facilitate debauchery—viagra, say, or the pill itself, or online software for locating sex partners—are pernicious, hence unpatentable. While modern norms do not regard casual sex as the ideal, they do take it largely for granted.

In a society where meeting a stranger in a singles bar and ending up in bed with her is not merely legal behavior but acceptable behavior, there are serious problems with a legal rule that can lead from a one night stand to several years in prison without requiring either knowledge or intent. Whether those problems will eventually lead to changes in the law I do not know. But they probably should.

Readers are welcome to offer other examples of fossil laws, and suggestions of how they might best be changed.