Eroding the Myth of Discretionary Justice in Family Law: The Child Support Experiment

Abstract:     
Reliance on judicial discretion to resolve disputes is one of the most fundamental characteristics of the American legal system. Nowhere have judges exercised more unfettered discretion than in family law. Judicial discretion in this area, however, is not without its critics. In this Article Professor Jane Murphy recommends limiting the use of judicial discretion in family law matters. Professor Murphy argues that the lack of predictability which flows from discretionary decisions undermines our confidence in the equity of decisions and encourages protracted litigation.

Professor Murphy reviews the developing consensus that fixed rules are necessary to guide judges' discretion in divorce dispute resolution. Examining the application of fixed rules to one particular area of family law-child support obligations-Professor Murphy demonstrates that the use of fixed rules has successfully provided judges and parties with a means of developing more equitable, predictable child support decisions. Professor Murphy concludes that fixed rules similarly will prove useful in other areas of family law that presently are governed by judicial discretion.

Number of Pages in PDF File: 35

Keywords: family law, judicial discretion, lack of predictability, fixed rules, divorce dispute resolution, child support obligations

JEL Classification: K19, K39, K49

working papers series