28 Pages Posted: 2 May 2015 Last revised: 24 Jun 2015
Date Written: April 30, 2015
This Essay is a Response to Professor Laura Rosenbury’s recent article Federal Visions of Private Family Support. Rosenbury’s piece offers critical new insights into the role of the federal government in the family. Rosenbury’s first important contribution is to demonstrate that, contrary to the dominant narrative, the federal government does not “consistently defer to states’ authority to define family.” Second, Rosenbury takes this point further by offering one of the few theories that seeks to explain why the federal government intervenes in the family. Rosenbury argues that the overriding reason the federal government recognizes families is “to privatize the dependencies of family members,” that is “to incentivize individuals to privately address the dependencies that often arise when adults care for children and for one another.” At a time when one of the most visible family law questions is whether same-sex couples will be permitted to marry, this aspect of family recognition is often overlooked, or at least undertheorized. This oversight is a mistake. Rosenbury’s piece seeks to keep this consequence of family recognition at the forefront of family law reform conversations.
This Essay highlights the significance of the contributions Rosenbury offers and then pushes her analysis even further. As Rosenbury herself acknowledges, the imposition of family-care obligations is not the only consequence of family recognition. In many circumstances, the government — at both the state and the federal level — also distributes family-based benefits or subsidies to help people fulfill these caregiving and support responsibilities. And while both sides of this equation — the legal obligations of and the subsidies for caretaking — clearly are interrelated, additional insights can be gained by separating these two effects of family recognition. In particular, this Essay argues that by looking at both the imposition of family-care obligations and the distribution of family-based subsidies one can better assess the effectiveness (or lack thereof) of family law and policy on particular families. In addition, looking at both sides of the equation can also provide a deeper understanding of why governments recognize families.
Keywords: family, federalism, dependency, care taking, parents, children, federal, state, privatize, subsidies, marriage, non marital, couples
Suggested Citation: Suggested Citation
Joslin, Courtney G., Family Support and Supporting Families (April 30, 2015). 68 Vanderbilt Law Review En Banc 153 (2015); UC Davis Legal Studies Research Paper No. 427. Available at SSRN: https://ssrn.com/abstract=2601124