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In this Article, the Author examines Ivan Illich’s linkages between gender and industrial capitalism discussed in Illich’s book, Gender. First, the Article describes Illich’s allergy to exchange as the agent that replaced households defined by vernacular gender with married pairs in “inhumane” sex-neutral economic partnerships. Second, the Article challenges Illich’s view of exchange as a destroyer that has meddled in families for only a few hundred years. The Author uses sociobiological literature to counter Illich’s case against exchange with one valorizing two exchanges that she calls “primal deals” that played crucial roles in the evolution of humans, families, and day-to-day life. Third, the Article contends that primal deals— especially the primal pair-bonding deal between men and women— continue to play a central role in families and family law today. Finally, this Article concludes by proposing a change in family law to reflect the contractual nature of families by allowing spouses to contract out of the primal deal, but at the same time recognize that those prenuptial agreements effectively cancel the primal deal between spouses. Accordingly, courts enforcing prenuptial agreements should also compensate the spouses who gave up property sharing rights in the prenuptial agreements for the hours, months, and years spent making and sustaining the home and family.
Martha M. Ertman, EXCHANGE AS A CORNERSTONE OF FAMILIES, 34 W. New Eng. L. Rev. 405 (2012), https://digitalcommons.law.wne.edu/lawreview/vol34/iss2/5