Binding Future Selves

Author:Kaiponanea T. Matsumura
Pages:70-125
SUMMARY

Courts traditionally treat a person entering an agreement as the same person at the time of enforcement notwithstanding the passage of time or an intervening change of mind. For certain agreements between intimates, however, courts have adopted the novel view that the enforcement of a person’s earlier commitment would improperly constrain that person’s will rather than serve as an expression of it. These cases rest on the... (see full summary)

 
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Louisiana Law Review
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Fall 2014
Binding Future Selves
Kaiponanea T. Matsumura
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Binding Future Selves
Kaiponanea T. Matsumura
ABSTRACT
Courts traditionally treat a person entering an agreement as the
same person at the time of enforcement notwithstanding the passage of
time or an intervening change of mind. For certain agreements
between intimates, however, courts have adopted the novel view that
the enforcement of a person’s earlier commitment would improperly
constrain that person’s will rather than serve as an expression of it.
These cases rest on the assumption that an intervening change has
created meaningful—and legally significant—differences between the
later self (at the time of enforcement) and the earlier self (at the time of
commitment) and that the later self deserves protection from the
earlier self’s choices.
This “different selves” rationale has arisen primarily in the
context of agreements pertaining to matters such as embryo
disposition, surrogacy, and parentage. Courts and commentators
appear to believe that the centrality of these types of choices to
personhood justifies exceptions to general contract principles. But
even assuming that choices of this sort differ from choices embodied in
“normal” contracts, the different selves rationale does not provide a
principled basis for resolving a dispute between the selves; it does not
explain why a choice central to personhood made at an earlier time is
less central to that person than a choice made at a later time.
This Article contributes to the existing literature on several fronts.
It reveals the increasing adoption by courts of the different selves
rationale, which, until recently, was thought to be merely theoretical.
It also exposes the ungrounded assumptions on which the rationale
rests: that it applies only to a certain set of choices, that it can identify
Copyright 2014, by KAIPONANEA T. MATSUMURA.
Associate Professor of Law, Sandra Day O’Connor College of Law,
Arizona State University. I thank William Baude, Stewart Chang, Beth Colgan,
Richard Craswell, Sharon Dolovich, Elizabeth Emens, Robert Esposito, Robert
Gordon, David Horto n, Sonia Katyal, Nanc y Leong, Benjami n Means, Alison
Morantz, Elizabeth Po llman, Russell Robinso n, Jane Schacter, Marj orie Shultz,
Brian Soucek, Norman Spaulding, Rebecca Stone, George Triantis, and Ryan
Wong for their helpful conversations and comments on drafts of this Article.
Thanks also go to the workshop participants at Arizona State University’s
Sandra Day O’Connor College of Law, Stanford Law School, and UCLA
School of Law. I thank Michele Cumpston and the librarians and staff of
Stanford’s Robert Crown Library for their expert research and support. Finally, I
thank the editors of the Louisiana Law Review for their thoughtful comments
and careful editing.
72 LOUISIANA LAW REVIEW [Vol. 75
the proper choices to protect, and that it can actually protect those
choices. Finally, this Article uses the different selves rationale as an
occasion to examine the role of personal identity in contract law.
Theories of personal identity emphasize the importance of self-
continuity and future-regarding action, both of which are disserved by
an approach that prizes a person’s preference at the time of dispute
rather than her earlier commitment.
TABLE OF CONTENTS
Abstract ..................................................................................71
Introduction ............................................................................73
I. Changed Preferences, Changed Selves? ................................79
A. Defining Personal Identity ................................................79
B. Scholarly Foundations of the Different Selves
Rationale ...........................................................................82
C. The Rise of the Different Selves Rationale in
the Courts..........................................................................86
II. A Critical Examination of the Different Selves Rationale .....92
A. Future Commitments and Alienability .............................92
B. Beyond Negative Liberty: The Unbounded Self? ............97
C. Choosing Between Selves ................................................99
III. Personal Identity and Contractual Commitments ................102
A. The Concept of Narrative Identity ..................................103
B. How Narrative Identity Theory Undermines the
Different Selves Rationale ..............................................107
1. Concerns About Differences Between the Selves
Should Not Normally Relieve Parties of Their
Contractual Commitments ........................................108
a. Against the Discontinuity Assumption ...............108
b. Against the Assumption of Limits on
Future-Regarding Choice ...................................111
c. Against Privileging the Time2 Self .....................111
d. Summary ............................................................115
2. The Future-Oriented Aspect of Narrative Identity
Weighs in Favor of Enforcing Agreements ..............115
3. Limits of the Narrative Identity Theory ...................120
Conclusion ...........................................................................122

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