Family Law Reimagined

Family Law Reimagined

Jill Elaine Hasday
Copyright Date: 2014
Published by: Harvard University Press
https://www.jstor.org/stable/j.ctt6wprbt
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  • Book Info
    Family Law Reimagined
    Book Description:

    This is the first book to explore the canonical narratives, stories, examples, and ideas that legal decisionmakers invoke to explain family law and its governing principles. Jill Elaine Hasday shows how this canon misdescribes the reality of family law, misdirects attention away from actual problems family law confronts, and misshapes policies.

    eISBN: 978-0-674-36984-9
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. [i]-[vi])
  2. Table of Contents
    (pp. [vii]-[x])
  3. INTRODUCTION: The Family Law Canon
    (pp. 1-14)

    The law shapes all of our lives, even when we do not realize it is there. It decides who has rights to what, who can make enforceable claims on whom, who is entitled and who is not. Family life is sometimes presumed to be a realm so private and intimate as to be beyond the law’s power. Indeed, the United States Supreme Court itself has contributed to that notion, repeatedly declaring that there is a “private realm of family life which the state cannot enter.”¹

    But in fact, one of the law’s most important and far-reaching roles is to govern...

  4. I FAMILY LAW EXCEPTIONALISM
    • [I Introduction]
      (pp. 15-16)

      One of the guiding concepts that judges, legislators, and commentators often invoke to describe and explain family law is the idea of family law’s exceptionalism. Many narratives about family law describe the field as distinctly set off from other areas of the law, so that legal rules and presumptions in force elsewhere do not apply or are actually reversed within family law. For instance, one scholar has explained that “[s]ociety has devised special laws to apply to the family” and observed that “ ‘family law’ can be thought of as a system of exemptions from the everyday rules that would...

    • 1 FEDERALISM AND THE FAMILY
      (pp. 17-66)

      A canonical story in family law describes the field as a rare respite of localism in an era when the federal government regulates virtually every other legal arena. Many judges, legislators, and other lawmakers, as well as scholars, litigants, and advocates, repeatedly tell this story about family law. The localist narrative is premised on family law’s exceptionalism. It portrays family law as clearly beyond the federal government’s boundaries when the limits on federal power are otherwise murky. It presents family law as an almost pastoral oasis of jurisdictional stability and certainty when the federal government has otherwise dramatically expanded its...

    • 2 FAMILY LAW AND ECONOMIC EXCHANGE
      (pp. 67-94)

      Family law is routinely described in ways that stress the separation between family and market. This theme manifests itself in legal scholarship and appears with even more frequency and significantly more immediate practical impact in the work of courts. But the canonical narrative about family law’s separation from market principles obscures the state of the field more than it illuminates. Family law and family relationships are already suffused with legally permissible and enforceable economic exchange that the narrative overlooks or underemphasizes. The faulty premise that family law does not countenance economic exchange to any notable extent misdirects debate and discussion...

  5. II THE FAMILY LAW CANON’S PROGRESS NARRATIVES
    • [II Introduction]
      (pp. 95-96)

      A second canonical theme in family law focuses on family law’s relationship to its past. Canonical stories about family law prominently feature progress narratives recounting family law’s evolution over time. The narratives stress sharp breaks from history, dramatic transformations in family law rules and policies, and the abandonment of historical practices grounded in subordination and injustice.

      These progress narratives are in unacknowledged tension with canonical accounts of family law’s exceptionalism. Stories describing family law as exceptional tend to depict family law as a haven of unusual stability while other legal fields undergo rapid and turbulent change. In contrast, family law’s...

    • 3 PROGRESS NARRATIVES FOR ADULTS
      (pp. 97-132)

      Descriptions of change over time in family law’s regulation of adults prominently feature two canonical stories. The first story contends that modern family law has renounced and repudiated the common law regime of coverture that legally subordinated married women to their husbands and denied wives most aspects of a separate legal identity. The second story reports that family law was once controlled by status rules whose terms were set by the state and unchangeable by the parties involved, but is now dominated by contract rules subject to individual negotiation and alteration.

      Both canonical stories are progress narratives. One declares that...

    • 4 A PROGRESS NARRATIVE FOR CHILDREN
      (pp. 133-158)

      Family law’s canonical progress narrative about historical transformations in the regulation of children contends that family law once accorded parents almost property-like authority over their minor children, but now prioritizes children’s best interests. The story insists descriptively that family law has sharply separated itself from past practices, shedding a common law tradition that employed property norms to guide the law of parenthood and that granted parents (especially fathers) rights of custody and control that were strong enough to be the virtual equivalent of property rights. It maintains that adults have reordered the legal system so that judges, legislators, and other...

  6. III WHAT’S MISSING FROM THE FAMILY LAW CANON?
    • 5 SIBLING TIES AND OTHER NONCANONICAL FAMILY RELATIONSHIPS
      (pp. 161-194)

      Family law has long revolved around marriage and parenthood. From the earliest decades of the United States republic, legal treatises on the family focused almost entirely on what modern Americans would call the nuclear family and indeed on just two specific relationships within that nucleus: the legal bonds between husbands and wives and between parents and children. Treatise writers surveying what was then known as the law of domestic relations announced in their very titles that they covered “The Law of Baron and Femme” or “Husband and Wife” and the law of “Parent and Child,” without mentioning ties between other...

    • 6 FAMILY LAW FOR THE POOR
      (pp. 195-220)

      The poor are also noticeably absent from the family law canon. Fifteen percent of the United States population—46.5 million people—lived in poverty in 2012, even using the federal government’s very restrictive definition of poverty.² Poor people are marked by class and also by race, sex, marital status, and age. People of color, women, unmarried parents, and children are all disproportionately likely to be impoverished.³ In 2012, non-hispanic whites constituted 62.8% of the United States population, but only 40.7% of the people in poverty.⁴ That same year, 30.9% of “families with a female householder” lived in poverty, compared to...

  7. CONCLUSION: Recasting the Family Law Canon
    (pp. 221-226)

    By definition, the family law canon is difficult to alter. The canon consists of deeply rooted, widely held ways of thinking about family law and its guiding principles that gain strength from their repeated invocation. Much of the family law canon’s power lies in its ability to operate at the level of common sense, so that canonical narratives and modes of understanding the field appear to require no explanation or reexamination. Changing the canon requires revising fundamental, embedded assumptions about family law that legal decisionmakers are accustomed to acting upon with little, if any, question or qualm. Legislators and judges,...

  8. NOTES
    (pp. 229-298)
  9. ACKNOWLEDGMENTS
    (pp. 299-300)
  10. INDEX
    (pp. 301-307)