Flourishing Rights

Author:Bach, Wendy A

Failure to Flourish: How Law Undermines Family Relationships, by Clare Huntington, is reviewed.



FAILURE TO FLOURISH: HOW LAW UNDERMINES FAMILY RELATIONSHIPS. By Clare Huntington. Oxford and New York: Oxford University Press. 2014. Pp. xix, 320. $45.


There is something audacious at the heart of Clare Huntington's Failure to Flourish.1 She insists that the state exists to ensure that families flourish. Not just that they survive, or not starve, or be able, somehow, to make ends meet-but that they flourish. She demands this not just for some families but, importantly, for all families. This simple, bold, and profoundly countercultural demand allows Huntington to make a tremendously convincing case that the state can begin to do precisely that. Failure to Flourish is a brave, rigorously produced, carefully researched, and politically astute book. Huntington seeks to persuade a wide swath of the American political landscape, and at every turn she chooses her words carefully to accomplish that end. This is an ambitious effort, and we would all be much better off if it succeeds.

In one of the most ambitious features of the book, Huntington attempts to transcend class, race, and gender boundaries. Although she is tremendously nuanced in dealing with the complexities of this endeavor, Huntington ultimately seeks universality. As a scholar dedicated to issues of poverty, I have no doubt that any restructuring of the relationship between poor families and the state will fare better if it is tightly anchored to universal solutions. The history of U.S. social-welfare policy teaches all too well that, when legal structures are targeted at the poor, structural racism, classism, and intersectional manifestations of gender bias raise their ugly heads. So we need something that is hard to get-we need universal solutions that take into account the differences in how legal institutions function across race, class, and gender. Ultimately, I applaud this book as a major contribution to the discussion of how the law must treat and support families and children, but I differ with Huntington in a few instances where she does not adequately account for the ways that legal institutions function in poor communities in general and poor communities of color in particular.

This Review proceeds as follows. Part I provides an overview of the book, outlining its main arguments. Part II turns to the question of poverty and describes central features of the current relationship between poor communities and the state as hyperregulatory, which means that the mechanisms of social support "are targeted by race, class, gender, and place to exert punitive social control over poor, African-American women, their families, and their communities."2 Part III then suggests that, rather than reject rights in child-welfare proceedings and beyond, Huntington's project might be more beneficial for those in poverty if we embrace a robust conception of rights. This Part acknowledges that, for those in poverty, our current constitutional jurisprudence confers neither any significant protection against rights violations nor a right to support. Nevertheless, Part III argues that a framework emphasizing rights allows us to see, in the interstitial cracks of our statutory schema and in daily fights on the ground for help and dignity, some glimmers of this more robust conceptualization of rights. Finally, this Part highlights the many ways in which Huntington's project challenges race, gender, and class privilege. In light of these challenges, this Review argues that, in addition to asserting vigorously rights that exist, we need to push forward in the project of theorizing a more robust conception of rights. Building on the work of Dorothy Roberts and Martha Fineman, Part III concludes by describing such a rights theory.


    Failure to Flourish offers a searing indictment of the relationship between legal institutions and families in America. Huntington's central thesis is that the "broad system of family law-both in resolving familial disputes and in setting the structural framework for family life-fails to nurture the strong, stable, positive relationships that are the key to individual and societal flourishing" (p. xii). This critique applies to two separate categories of law. The first category is dispute-resolution family law-the legal processes by which individuals become families and restructure their relationships (p. xii). The second category, which Huntington labels structural family law, includes some topics that are likely to appear on a family-law course's syllabus and other topics that are not (p. xii). In the first category are laws about who comprises a family (with gay marriage being the central contested category) and rules about "what family members owe one another" (p. xii). Structural family law also reaches more broadly, extending into areas of the law that profoundly affect the ability of families to function well. Legal rules and institutions relating to zoning, employment discrimination, taxation, and social-welfare and criminal-justice policy all fall within structural family law (p. xii).

    This book starts not in law but in science, offering extensive evidence that strong family relationships are crucial to "child development, adult well-being, health, healing, and the acquisition of social capital" (p. 7). Drawing on positive psychology, Huntington shows that the ability of families to nurture children, from their earliest moments, will have a long-term effect on brain development. When positive nurturing and secure attachment are absent, children's development can be negatively affected, often for the long term (pp. 7-8). Toxic stress, in the form of "abuse, neglect, extreme poverty, and maternal clinical depression," negatively impacts brain development (p. 8). And negative attachments often mean that kids and future adults will lag behind in important ways. Crucially for Huntington's later endorsement of programs that intervene early in family life, all of this happens very, very early-during the first months and years of children's lives (p. 8).

    Having laid this groundwork, Huntington ventures boldly into the politically dangerous topic of how family structure affects children. She begins by cataloguing changes in the structure of American families and then turns to the question of impact (pp. 27-31). Her data-rich conclusions raise challenges for actors across the political spectrum. On gay marriage she is definitive. There is no credible evidence to suggest that children parented by two people of the same sex do any worse than children with opposite-sex parents. In fact, these children thrive (p. 34). Moreover, "[t]here is overwhelming evidence that children raised by single or cohabitating parents have worse outcomes than children raised by married, biological parents" (p. 31). So do children exposed to high-conflict divorces and children whose fathers fade out of the picture after divorce (pp. 33-34).

    After demonstrating the correlation between family structure and child development, Huntington turns to the complicated issue of causation. She acknowledges that single parents are also more likely to be young, poor, and less educated (p. 35). Her question for social policy then becomes whether "the problem [is] having a single parent or having a low-income, young, less educated parent" (p. 35). Huntington presents data that strongly suggest that the problem is twofold. Age, poverty, and education matter, but relationships matter as well. Even in the face of stress, children do better when their parents can successfully raise them together (pp. 42-44). The question for social policy, though, is whether to focus on the families, the circumstances, or both. Huntington's answer is that we must do both-we must address the structural issues that exacerbate these risks and restructure legal institutions to support families (pp. 54, 115).

    Having established the serious challenges facing American families, Huntington takes on a central myth of American law: that families are autonomous from the state (p. 58). She definitively debunks two related autonomy myths. First, she dispels the notion that any family operates apart from the state, and, second, she disputes the notion that only poor families depend on the state for support. In fact, Huntington maintains, all families are intertwined and interdependent.

    To debunk the myth that families operate apart from the law, Huntington presents an extraordinary catalogue of the ways that law impacts families (pp. 59-68). Law determines what groupings are entitled to be a family (heterosexual couples, yes; lesbian and gay couples, well, it depends). Law determines how one enters and exits families. Law also structures families' ability to flourish (or not). Consider, for example, employment law. The ability to make a living wage (or not) profoundly impacts the ability of a family to provide strong parenting. So does the availability (or not) of paid parental leave, subsidized child care, and health insurance. The extraordinary policing, prosecution, and incarceration of poor black men and women all profoundly impact their ability to parent. Law and legal institutions make all of these rules. In the face of this pervasive state presence, it is easy to see that the idea of families as independent of the state is largely a myth.

    On the issue of support, Huntington builds on the work of Suzanne Mettler to establish that a far greater range of families receives state support than popular discourse suggests or that families themselves actually realize (p. 72). Mettler surveyed families to find out if they believed they receive governmental assistance (p. 72). Fifty-seven percent responded that they had not received such assistance (p.72). When the same survey respondents were asked if they had ever received aid from twenty-one particular assistance programs, however, 92% indicated that they had (p. 72). One explanation for this striking...

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