Malcolm McLaren – "Madam Butterfly (Un bel di vedremo)" (1984)

Who on earth can it be

Coming up the path for me?

What on earth will he say?

Shall I run to him or run away?

In 1964, American philosopher Abraham Kaplan formulated “the law of the instrument”:

Give a small boy a hammer, and he will find that everything he encounters needs pounding.

Psychologist Abraham Maslow’s restatement of the law of the instrument is more familiar:

I suppose it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.

The point both men were trying to make is that we need to be careful when choosing a tool to use.  It’s tempting to pull out the tool that we are most comfortable using, regardless of whether it is the best one for the job.

If you ask a law professor for help in solving a problem, you’ll probably be told that a new law is needed.

New laws are to law professors what hammers are to small boys.  Law professors tend to pound every troublesome situation they encounter with legislation.

*     *     *     *     *

Irina Manta is a law professor at Hofstra University who believes that there ought to be a law that punishes anyone who uses Tinder or another dating app to fool someone into having sex with him or her.

Law professor Irina Manta

Here’s an excerpt from her soon-to-be-published law review article that describes the kind of harm her proposal would address:

A prototypical hypothetical case is a man whom we shall call Marvin Simmons who claims to be single but is actually married.  A woman named Leila is using dating apps to find someone single who is open to the possibility of a serious monogamous relationship.  She is 39 years old and would ideally like to have biological children if she finds the right partner.  Marvin and Leila both right-swipe and a match is created.  

Marvin is most definitely not what she is looking for, but his lie misleads her into thinking that he is in the pool of people worth exploring.  They spend some time chatting and decide to meet for drinks. A few dates later, they begin having sex.  

Marvin is a busy business executive, so he can only meet once or twice a week.  Furthermore, he tells Leila that it has been a rough year for him – he got divorced a year ago and his mother died recently, so he wants to get to know someone slowly and feels the need to spend much of his rare free time alone or with friends.  

Leila has googled Marvin and while he does not really use social media (“Facebook is such a waste of time!” he told her), she finds a LinkedIn page with the name that he gave her and the information checks out.  Leila has no reason to assume that Marvin Simmons is a fake name.

Leila’s feelings for Marvin grow over time and she hardly dates other men any more.  After a few months, however, she becomes increasingly concerned because not only has he not introduced her to any of his friends, but they have still not been to his apartment.  His explanation made sense at first – his apartment was under renovation and her apartment was close to his work, so it seemed logical to hang out there during intimate times.  When Leila demands to see Marvin’s apartment, regardless of the state of the renovations, he finally confesses that he is actually married and his wife does not know about his extracurricular activities.

Feeling violated (i.e., recognizing the dignitary harm she suffered) and heartbroken (i.e., experiencing emotional harm), Leila is left without meaningful recourse.  She could tell Marvin’s wife what happened, if Leila even figures out his true identity, but violence could erupt and the wife may not believe that Leila was in the dark about his marital status that whole time.  Leila has no useful way to leverage social sanctions.  She has wasted months on him, and several more months pass before she is able to trust enough again and recover from the depression into which this incident plunged her.  Meanwhile, Leila turns 40, and the passage of time has diminished her odds of being able to conceive a child.  Marvin’s deceit was directly responsible for her inability to pursue her best interest.

There may well be a good match for Leila out there, but in addition to bringing about dignitary and emotional harm, individuals like Marvin greatly increase Leila’s search costs.  There is never a guarantee that a dating relationship will work out, but the relationship with Marvin was essentially doomed to failure from the start.  Similar to the scenarios that arise in trademarks, Leila could not get the “product” she wanted due to its misleading branding.  Marvin was using the romance equivalent of a deceptive trademark or of false advertising, which are actions prohibited by the Lanham Act and other laws in the commercial context.

Professor Manta believes that there should be a law giving Leila a legal cause of action against Marvin because he lied about his marital status so that she would have sex with him.

Because lawsuits are expensive, she would allow Leila to file her case against Marvin in small-claims court – where procedures are simplified, and where plaintiffs can represent themselves instead of hiring lawyers.

Because it is hard to measure the harm that Leila suffered in dollars, Professor Manta thinks the law should specify how much Marvin would have to pay if he is found guilty of sexual fraud.  

She suggests that $5000 might be an appropriate damages award.  Such an amount would certainly be sufficient to deter most potential fraudsters – especially serial fraudsters.

*     *     *     *     *

Professor Manta’s Leila-Marvin hypothetical is unusually detailed.  Because Professor Manta is une femme d’un certain age who freely admits to have used dating apps – in fact, she met her husband on Bumble, a “Sadie Hawkins”-style app where only the woman can make the first online move – I asked her if she herself had been a victim of sexual fraud by a married man.

An ad for the dating app Bumble

“No, that story is made up for hypothetical purposes,” she told me, “although I know people who have encountered elements that make up parts of the scenario.” 

A significant component of the damages Leila has suffered at the hands of Marvin relates to the time she has wasted in a relationship with a man who is not what he claims to be – and not what she is looking for.  According to Professor Manta, those wasted months are particularly precious to Leila – a 39-year-old women who wants to have children – because “women lose their fertility in a much more dramatic way than men” and because “their appeal to the male dating pool drops over time as well; women in their early to mid-20s are highly prized, after which there is a steady decline.”  

What if instead of swiping right on Marvin, Leila swiped right on Oliver – who was single, but who deceived Leila by claiming to be open to marriage, fatherhood, etc., when he was really only interested in a short-term sexual relationship?  

Or maybe Leila hooks up with Theodore, who admits from the beginning that he is married but claims that he is about to leave his wife when that’s not true?

Professor Manta’s proposal would not provide a legal remedy for Leila in such a case, even though Oliver’s or Theodore’s lies result in exactly the same harm to Leila as Marvin’s.

“We cannot and should not have the law intervene for this type of scenario,” she told me.  “I am interested in fairly binary pieces of information – whether the man is married but says that he isn’t, etc. – and not these kinds of things.”

Professor Manta’s proposal is also limited to cases where the woman had intercourse with the fraudster.  The value of Leila’s wasted time is the same whether she has had intercourse with Marvin during the course of their relationship or not.  So why would Professor Manta allow Leila to recover only if Marvin has persuaded her to sleep with him?

“We have to draw the line somewhere,” she explained, “and sexual intercourse seems like one logical point.  But I don't see a huge problem with using sexual penetration of any sort instead.  Ultimately, we are trying to estimate at what point significant dignitary and emotional harms are likely to kick in, and for most people that won't be at the stage of just kissing.”

In other words, the harm Leila suffers by wasting time with a married man is the same whether she has sex with Marvin or not.  But the emotional distress that results from Marvin’s lies is likely to be greater if she has had intercourse than if she and Marvin simply held hands or kissed. 

*     *     *     *     *

If you’re not a lawyer, you’ll might find the language Professor Manta uses to be rather odd.  Marvin increased Leila’s “search costs,” and caused her to suffer “dignitary harm”?  Leila has “no useful way to leverage social sanctions” against Marvin?  Marvin has engaged in “misleading branding” that’s akin to a marketer’s deceptive trademark?

This isn’t the way normal people look at the world, is it?

No, it’s not.  But it is the way that law students and law professors view life.

*     *     *     *     *

I enjoyed reading Professor Manta’s thoughtful article – for one thing, the topic is certainly a lot more juicy than that of the typical law review article – and I found it an interesting intellectual exercise to work my way through the specifics of her proposal.

While I can’t argue with Professor Manta’s conclusion that Leila has been harmed by Marvin’s deception, I doubt that her legislative proposal will be enacted into law.  Even if it does become law, I question how many Leilas would choose to pursue their Marvin in court.

I can live with that outcome because I think there are probably way too many laws and lawsuits in this country already.  It doesn’t really bother me that there’s not a legal remedy for every wrong that people encounter in everyday life.  Not all of our problems are nails that need to be pounded by a legal hammer.

*     *     *     *     *

So what do you do if  you’re Leila, and you want to put the hurt on Marvin – but there’s no law that allows you drag his sorry ass into court.

The answer should be obvious: You let your inner Glenn Close loose on that bastard!

*     *     *     *     *

“Un bel di vedremo” is an aria sung by the title character of Giacomo Puccini’s 1904 opera, Madam Butterfly.

At the end of that opera, Madame Butterfly commits suicide by cutting her throat. 

In the original version of the 1987 movie, Fatal Attraction, Glenn Close’s character cuts her throat as “Un bel di vedremo” plays on the soundtrack.  

A few years before Fatal Attraction was released, the late Malcolm McLaren – the impresario behind the Sex Pistols – released Fans, an album that combined opera and R&B.

Click here to listen to McLaren’s adaptation of “Un bel di vedremo,” which made it all the way to #13 on the UK singles chart.

Click on the link below to buy that song from Amazon: