The ALI Principles of the Law of Family Dissolution: Addressing Inequality Through Functional Regulation

The American Law Institute: A Centennial History (Andrew S. Gold & Robert W. Gordon, eds., Oxford Univ. Press 2023 Forthcoming)

Boston Univ. School of Law Research Paper

Yale Law School, Public Law Research Paper Forthcoming

24 Pages Posted: 27 May 2022 Last revised: 28 Aug 2022

See all articles by Douglas NeJaime

Douglas NeJaime

Yale University - Law School

Linda C. McClain

Boston University - School of Law

Date Written: May 25, 2022

Abstract

As part of a volume commemorating the American Law Institute on its centennial, this Essay reflects on the ALI Principles of the Law of Family Dissolution. We show how the reporters intervened in cutting-edge issues at a time of flux in family law in ways that elaborated a progressive agenda that would continue to gain traction in the years after the Principles’ publication in 2000. Beginning from the assumption that family law should reflect how people actually live, the reporters developed a functional, rather than formal, approach to legal regulation. Such an approach, they believed, could vindicate commitments to equality and advance family law reform goals of predictability, consistency, and fairness. Drawing on archival materials and interviews, we show how concerns with intra-family inequality—particularly gender-differentiated roles in different-sex couples—and inter-family inequality—particularly marital-status distinctions that dovetailed with the exclusion of same-sex couples—led the reporters to articulate generally applicable principles capable of accommodating families’ lived experiences.

Explicit adoption of the Principles’ recommendations by courts and legislatures has been rare. Yet, we reject a view of the Principles as a failed project. We understand the Principles not simply as a directive to lawmakers and judges but instead as a meaningful intervention in ongoing debates among courts, legislatures, advocates, and scholars about the future of family law. In the intervening decades, the Principles’ functional approach, we show, has grown dramatically across jurisdictions, and this growth has been spurred in large part by efforts to eradicate inequality within and between families. Parentage law, for example, has turned to functional criteria to protect parent-child relationships regardless of the gender, sexual orientation, or marital status of the parent. While the Principles’ functional approach to adult relationships remains a distinct minority position among U.S. jurisdictions, we nonetheless observe how the Principles’ status-based approach to nonmarital relationships continues to serve as a foundational authority in ongoing, and increasingly urgent, debates over legal remedies for unmarried partners.

Keywords: Child custody; De facto parent; functional families; unmarried couples; cohabitation; ALI Principles of Family Dissolution; Alimony; Domestic partnership; gender equality; family inequality; parentage; LGBTQ equality; functional parenthood

Suggested Citation

NeJaime, Douglas and McClain, Linda C., The ALI Principles of the Law of Family Dissolution: Addressing Inequality Through Functional Regulation (May 25, 2022). The American Law Institute: A Centennial History (Andrew S. Gold & Robert W. Gordon, eds., Oxford Univ. Press 2023 Forthcoming), Boston Univ. School of Law Research Paper , Yale Law School, Public Law Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=4119927 or http://dx.doi.org/10.2139/ssrn.4119927

Douglas NeJaime (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

Linda C. McClain

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

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