Binding Future Selves

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

Louisiana Law Review



Fall 2014

Binding Future Selves

Kaiponanea T. Matsumura



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

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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