Fudging Failure: The Economic Analysis Used to Construct Child Support Guidelines
Ira Mark Ellman
Arizona State University College of Law; Arizona State University (ASU) - Department of Psychology; Center for the Study of Law and Society, Berkeley Law, University of California, Berkeley
University of Chicago Legal Forum, 2004
Federal law requires all states to have guidelines that determine the amount of a child support award in most cases. It also requires the states to reexamine these guidelines every fourth year to ensure that they continue to set appropriate awards in light of possibly changing economic conditions. These revisions are typically carried out with the assistance of economic consultants. This article is about the substance of that revision process as it is conducted in most states, and in particular the method employed by these consultants. That method effectively defines a particular conception of how child support awards should be formulated, a conception most accurately described as continuity of marginal expenditure. Consultants engage in a technical exercise through which they implement this conception, ultimately yielding a set of recommended award levels for varying family sizes and parental incomes. That exercise involves estimates of parental expenditures which rely upon equivalence scales, and upon data collected in the Consumer Expenditure Survey.
This article argues that that the conception of child support implied by the consultants' methods is not in fact compatible with the relevant public policy, and is adopted by lawmakers primarily because they do not understand it. The paper also concludes that even if the consultants' conception were correct, the implementation cannot be because of well-known defects in equivalence scale methodology upon which they rely. In addition, flaws in the Consumer Expenditure Survey data are likely to distort considerably the consultants' analysis. These conceptual and implementation flaws in the typical consultants' analysis are especially troubling because they appear to be entirely invisible to the policymakers charged with writing child support guidelines.
This Article, therefore, is not about whether child support guidelines are too low or too high. It is about how an opaque technical analysis, relied upon by policymakers who do not understand it, keeps them from even considering that question in any systematic way. Child support guidelines are thus an example of how a public body's use of expert consultants can convert the rulemaking task into a technical exercise involving methodological choices whose policy implications are concealed from those responsible for choosing the policy. Specific suggestions are offered for reforming the guideline writing process to make policy choices more salient and to obtain better information upon which to base those choices.
Number of Pages in PDF File: 47
Keywords: child support, consumer expenditure survey, equivalence scale
JEL Classification: J12, K19, J13
Date posted: April 9, 2004
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