Localist Family Law: Unearthing the Local Common Law of Divorce

Abstract

Courts often refer to family law as a quintessential state concern. Over the last decade, family law scholarship has exposed numerous ways that the federal government, in addition to the states, plays a significant role in shaping family law. This Article also critiques the standard trope about family law as a state concern, but does so from the perspective of sub-state entities. Several local courts, local bar associations, and informal groups of practitioners have adopted local substantive norms in an attempt to harmonize the decisions of local judges and make family law’s open-ended standards more predictable. But the most important of these attempts at codifying local norms have been summarily rejected by state appellate courts. This is misguided. The real choice is between public local norms, secret local norms, and allowing the arbitrary whim of individual judges to control foundational interests in property and parenthood. Once this is revealed, the proper choice is clear. Instead of destroying local norms or forcing them underground, appellate courts should treat local substantive norms like they would treat local procedural norms and encourage their codification.

Keywords: family law, norms