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Abstract:
What explains U.S. family law? To answer this question, this Article undertakes a conceptual analysis of the legal practices that govern families. This analysis has yet to be done, and its absence hamstrings constructive thought on our family law. The Article develops a typology that conceptualizes U.S. family law and exposes its underlying principles: First, it identifies the significant elements, or rules, of family law. Second, it demonstrates that these rules reflect or embody four important concepts - conjugality, privacy (familial as well as individual), contract, and parens patriae. Finally, it shows that the concepts of family law in turn embody two distinct underlying principles - Biblical naturalism and liberal individualism. From these powerful principles, we can derive modern U.S. family law: they explain what our family law is.

With this deepened understanding of its structure, the Article next evaluates family law as the expression of it principles. It concludes that each principle is individually flawed; and, taken together, they are too often in unproductive tension. They thus doom U.S. family law to incoherence and must be revised.

At a minimum, this Article seeks to launch a much-needed debate in family law on whether our current foundational principles are desirable, or even defensible. More ambitiously, the Article aims to ground a new jurisprudence of family law that better reflects the social goals and needs of contemporary U.S. society.

Family Law

Abstract:
This Article examines the role of marriage in society, focusing on the state's use of marriage as a proxy for desirable outcomes in social policy. Its analytical point of departure is the normative vision of modern marriage embraced by many of its proponents. From there, the idealized marriage is analyzed, not as a monolithic, opaque institution, but as one whose functional components may be identified and examined. The Article identifies the following as the primary functions of the normative marital family: expression; companionship; sex/procreation; caretaking; and economic support or redistribution. Analyzing the roles in society of each of these functions, it concludes that: (1) the expressive and companionate functions of marriage provide no societal benefit sufficient to justify state interference in those functions; (2) its purely sexual and procreative functions merit privacy and should, in all respects, be treated no differently than nonmarital sex and procreation; but (3) its caretaking and economic support functions benefit society significantly. Indeed, here the state's interest is at its apex. Accordingly, direct support of these two closely related functions, rather than the crude proxy of marriage in its entirety, should be the focus of state social policy in this area.

Family Law/Policy, Marriage

Abstract:
This Essay, prepared for the symposium "Red State v. Blue State: The Judicial Role in An Era of Partisanship", held in September 2008 at the University of Missouri-Kansas City School of Law, examines whether state court judges adjudicating family law cases may exercise their discretion in a manner that expresses community values. It suggests that they may consider doing so in private law - but not public law-disputes. Expressing community norms through discretionary decision making may promote societal goals of cohesion, solidarity, and legitimization of the courts. These goals must be balanced, however, against the cost to individuals' liberty rights in a diverse and heterogeneous society.

The Essay begins by discussing diverging social values in U.S. communities, especially with respect to issues pertaining to family life. It next argues that giving expression to a community's values through adjudicating private law disputes - where litigants more or less voluntarily submit their cases for resolution to the court of a given community - may help ensure that members of the relevant community perceive the court as both legally and socially legitimate. It cautions against doing so in public law actions, however. In those actions, the state hauls private parties before the community's tribunal and by pursuing litigation on its own behalf, represents community values. Courts in those cases should place foremost their role as guardians of individuals' negative liberty, checking both the state's police power and the potentially oppressive weight of community norms.