Why Making Family Law is Hard
Arizona State Law Journal, Vol. 35, p. 699, 2003
Posted: 3 Sep 2009
Date Written: 2003
Most Americans believe that our choice of family law rules matters. Any legal rule that affects people in their role as a family member might be considered family law. This essay focuses on the private law of families: the law of marriage and divorce, of child support and child custody, and of nonmarital cohabitation. It is a body of law that operates in a sphere rich with nonlegal obligations that people take seriously.
As a general matter, it would seem that private law can serve either or both of two functions. It may be instrumental, designed to affect people's behavior in some way that policymakers believe desirable. Or it may be retrospective, concerned less with changing what might happen in the future, than with changing the consequences of what has already happened, to make the outcome more fair. This essay suggests that it is difficult to formulate a family law rule that serves either purpose very well, and that is why family law is hard. For Americans, using the law to shape family behavior presents special problems because of our long legal tradition of family privacy, which has both common law and constitutional components. Family law rulemakers can do better by trying to be fair than by trying to set incentives for socially desirable intimate behavior, but sadly, not much better. That is because any rule clear enough to provide reasonably consistent and predictable judgments must be chosen from among alternatives with equal or nearly equal claims to being fair.
Keywords: family law, custody, alimony
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