INSIDE THE CASTLE: LAW AND THE FAMILY IN 20TH CENTURY AMERICA. By Joanna L. Grossman and Lawrence M. Friedman. Princeton and Oxford: Princeton University Press. 2011. Pp. 331. $35.
The twenty-first century has seen the dawn of a new era of the family, an era that has its roots in the twentieth. Many of the social and scientific phenomena of our time--same-sex couples, in vitro fertilization, single-parent families, international adoption--have inspired changes in the law. Legal change has encompassed both constitutional doctrine and statutory innovations, from landmark Supreme Court decisions articulating a right to procreate (or not), a liberty interest in the care, custody, and control of one's children, and even a right to marry, to state no-fault divorce statutes that have fundamentally changed the way married couples dissolve their legal relationships. But thus far, no legal scholar has attempted to write a comprehensive history of twentieth-century family law. To be sure, many excellent books have been written on particular aspects of the twentieth-century story. (1) Inside the Castle: Law and the Family in 20th Century America, by Joanna Grossman (2) and Lawrence Friedman, (3) however, is the first book to my knowledge that attempts to provide a comprehensive social history of twentieth-century family law in the United States.
The goal that Inside the Castle articulates is "to look inside the home, inside the castle; to map a century's worth of dynamic change" (p. 22). The central claim of the book is that the rapid social change that occurred during the twentieth century forced the law to adapt in correspondingly sweeping ways. Readers who are familiar with Professor Friedman's voluminous other books and articles on legal history will recognize his "law as mirror of society" thesis here, and readers of Professor Grossman's numerous law review articles and Justia commentaries will recognize her careful attention to the effects of contemporary social phenomena on the law. (4) "Family law follows family life," Professors Grossman and Friedman state (p. 2).
That is, what happens to families, in this society, determines what happens to the law of the family. Law is not autonomous; it does not evolve according to some mysterious inner program; it grows and decays and shifts and fidgets in line with what is happening in the larger society. (p. 2) Professors Grossman and Friedman identify a plethora of social changes that transformed American family law. These include technological changes, such as contraception, fast and efficient transportation, and medical advances leading to longer life spans; social changes, such as "dramatic changes in relations between men and women" and "the particular mass culture of the late twentieth century"; and economic changes, including a booming industrial and postindustrial economy and vastly increased individual wealth (pp. 7-8). Together, these new changes helped to produce a new kind of person--the autonomous individual. Where the nineteenth-century married couple stayed together "until death do us part," the twentieth-century couple-at least by century's end--stayed together until the marriage "no longer contributed to personal growth and fulfillment, for either partner" (p. 12). Whereas nineteenth-century men and women were expected to marry to have "legitimate, approved-of sex," twentieth-century unmarried couples began cohabiting in such great numbers that by the late twentieth century, "it had pretty much become normal" (p. 10). And it was not only married couples who became more autonomous; extended families broke apart, the birth rate receded, and adult children were placed in the difficult position of being financially responsible for aging parents living longer postretirement lives. (5)
Inside the Castle ties the major legal changes in family regulation to these changed social conditions. According to its story, the desire for companionate marriage led to no-fault divorce (pp. 13-16); the weakening of sexual mores led to the abolition of laws criminalizing nonmarital sexual activity (pp. 9-13); the aging of the population led to social programs such as Medicare and Social Security, which serve as "a lifeline for seniors" but are also highly beneficial to their adult children, relieving them of much of the "financial burden of parent-care" (pp. 16-17). Even changes in adoption law can be traced to these fundamental social changes. When "bastards" became the more benignly termed "nonmarital children," adoption no longer carried a stigma requiring secrecy, and when family formation became a matter of self-fulfillment rather than a duty, choosing to become a parent through adoption or alternative reproductive technologies became a laudable goal worthy of facilitation through law (pp. 20-21).
If all of this sounds as if it applies primarily to the middle class--or perhaps even the upper middle class--that's because it does. Professors Grossman and Friedman are refreshingly up-front about the limitations of their project. They admit, near the very beginning of the book, that "it would be more accurate to say that this is a book about middle-class family law" (p. 2). They expressly distinguish "another, vast field, which deals with poor families" (p. 2), the law commonly referred to as "welfare law." This alternate story, one that they describe as
the tortured and depressing story of the way in which the state, in exchange for welfare payments, has claimed and exercised rights to meddle with the family lives--even the sex lives--of poor mothers and other women, in ways that would be legally and social intolerable with regard to middle-class families (p. 2), is clearly not the subject of their book.
In this Review, I aim to highlight the strengths of Professors Grossman and Friedman's rich and insightful approach to the study of family law while also calling attention to the ways in which their focus on the middleclass family may distort our understanding of the relationship between the family, law, and society. I begin in Part I by discussing the aspects of the book that track what legal casebooks and treatises traditionally classify as "family law"--the law of marriage, divorce, child custody, and adoption. I discuss the book's expansive treatment of the law of public assistance-including Social Security and Medicare--and argue that by focusing on the impact that broad social developments can have on the law, the authors are able to make observations about the development of law in areas that have been defined by legal academics as doctrinally distinct, yet share a common genesis in social change. In Part II, I identify the area where the authors could have further expanded this approach: the treatment of families that do not fit the book's marital, middle-class lens. Part III argues that the exclusion of poor families from the book's scope calls into question some of its causal historical claims.
THE LAW "INSIDE" THE CASTLE
To begin, what is the law of the family? And what is "family law"? These two questions, I would argue, have very different answers. The first invites us to consider the many ways in which families are created, shaped, and constrained by law. The "law" at issue may be law that we think of as tax law (marriage benefits and penalties, child care credits), property law (the ownership of property acquired during a marriage, including land, income, and pensions), public assistance law (including the law of public entitlements based on family relationships, such as Social Security, Aid to Families with Dependent Children, and its successor, Temporary Assistance for Needy Families), zoning law (including restrictions on individuals living together who do not qualify as a "family"), trusts and estates law (including intestate succession and the effect of family status on inheritance taxes), tort law (including interspousal tort immunities), contract law (including what spouses may or may not promise one another), insurance law (including the provision of health insurance through employer and family relationships rather than through government subsidy), and criminal law (including the rapidly developing law of domestic violence).
Family law, in contrast, is indisputably the law of marriage and divorce and the law of parent-child relations. Open almost any casebook with the title "Family Law" or "Domestic Relations" and you'll see it--cases covering topics such as entry into marriage, the intact marriage (maybe including some of what we might otherwise call "property law"), and the law of divorce, including child custody, child support, spousal maintenance, and property distribution. Many casebooks also give attention to parent-child relations, including adoption law and the law of relatively new alternative reproductive techniques, such as in vitro fertilization and surrogacy. Different casebooks, of course, emphasize different issues. At least one casebook has made an effort to destabilize the importance of marriage, beginning instead with adoption. (6) Others include more extensive treatment of the property interests of spouses in ongoing marriages and the public assistance aspects of family relationships. (7) But the ghost that haunts all of these casebooks is the content of the domestic relations portion of the bar exam--the nuts and bolts of marriage and divorce. Casebook authors who deviate from the standard format do so consciously, with the knowledge that what they are doing is unexpected and divergent.
The distinction I am drawing here is not new. The last few years have produced a flowering of scholarship challenging the traditional constraints of the doctrinal field of family law. Janet Halley has written several articles tracing the genealogy of "family law" and critiquing what she calls "family law exceptionalism"--the treatment of the family and the market as separate spheres, and the consequences that follow in...