Sacred Children and Taboo Tradeoffs

Abstract

This Article brings together two literatures—bioethics and taboo tradeoffs—to reveal pervasive distortions in current family law scholarship, judicial reasoning, and legislation. Empirical work in bioethics shows that child welfare occupies a unique moral sphere. People routinely resist making tradeoffs between spheres. Just as sacrificing adult lives for money is taboo, so too is sacrificing child welfare for adult welfare. When faced with the prospect of these tradeoffs, people engage in a predictable set of avoidance and moral mitigation strategies. Across five case studies, this Article shows how child welfare has talismanic qualities which, even in the rarified world of the legal academy, wards off any open discussion of competing interests and powerfully distorts scholarly arguments. The problems are worse in the context of elected officials. No legislator can plausibly say: “Of course I’m harming these children, but look at all the offsetting benefits to adults!” Recognizing the taboo nature of trading off child welfare is critical to fully understanding recent critiques of empirics within family law and has particularly dire implications for the budding movement toward Empirical Based Policy Making.