The Puzzle of Family Law Pluralism

Abstract:     

Family law is succumbing to pluralism. Scholars have celebrated this trend as a desirable outcome of the struggle for marriage equality. And a pluralistic family law seems to offer distinct benefits: more regimes than just marriage, and greater room for choice within each regime (manifest by more types of legally enforceable intrafamilial contracts). This Article exposes counterintuitive facts that lead to a surprising conclusion: the legal changes that scholars tout as increasing pluralism eviscerate the substance of the choices families are permitted to make.

The policies that appear to extend choice within each regime, in fact, mask what I call a “neoclassical” approach to intrafamilial contracts — that is, an approach that adopts formalist, binary, and proceduralist principles for the creation of legal obligations. As this Article’s scrutiny of prenuptial and cohabitation agreements reveals, neoclassical contract theory is slowly taking over family law. The neoclassical approach vindicates a thin notion of autonomy over other values and favors the status quo. The Article further contends that the roots of family law pluralism in market logic render it fundamentally flawed: as long as the menu of relationship options is predicated on basic contract law, then, regardless of how many options the menu includes, the system will necessarily privilege the more powerful partner.

Is it possible to avoid this perverse result while preserving freedom of choice? The Article develops a more robust vision of pluralism by identifying the goals and methods of pluralism in family law as they have developed over time. In doing so, the Article offers foundations of a new theory of pluralism that advances true substantive equality and autonomy.

Number of Pages in PDF File: 52

Keywords: family law, contracts, pluralism, menu of options, prenuptial, cohabitation, pluralistic theory, civil unions, neoclassical contract, privatization