Should Spouses Be Able to Sue Their Mates' Lovers?

Newsweek article "Should Spouses Be Able to Sue Their Mates' Lovers?" (March 26th, 2010) speaks on the demise of laws that allow the spouse of someone who engages in extramarital sex to sue their spouse's partner. It suggests that the ending of these laws could be tied to their ineffectiveness. Corrections suggests that they could be due to their counter-effectiveness.

Back when women were considered property, there was a set of laws on the books called "heart balm" torts. Meant to protect the family unit from interlopers, these Victorian-era statutes gave men the right to sue anyone who seduced their wives. The terms at the time were "criminal conversation," which meant adulterous sex, and "alienation of affection," which could be anything that destroyed the love between husband and wife.

But perhaps recognizing that the threat of public humiliation and financial penalty hasn't ever been all that effective in deterring adultery—just ask John Edwards and Tiger Woods—most of the country got rid of these laws in the 1930s.

Corrections suggests that penalizing extramarital intercourse will have two effects. The first is to make people less likely to engage in extramarital intercourse. The second will be to make people less likely to marry. Affairs will become more expensive for married individuals (Corrections conjectures that their elasticity of demand is much lower than the elasticity of supply by their extramarital partners follows from common sense). This, in turn, will make marriage itself a more expensive proposition. This should cause both fewer marriages and more divorces. It would not be ridiculous to postulate that these laws could end due to their unintended consequences of harming marriages.