Expressing Community Values Through Family Law Adjudication

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.