Lucy S. Mcgough, Introduction

• Publication year: 2005

EMORY LAW JOURNAL

Volume 54 SUMMER 2005 Number 3

THE RANDOLPH W. THROWER SYMPOSIUM†

FAMILIES IN THE 21ST CENTURY: CHANGING DYNAMICS, INSTITUTIONS, AND POLICIES

INTRODUCTION: THE PAST AS PROLOGUE¹

Lucy S. McGough^*

Welcome to "Families in the 21st Century: Changing Dynamics, Institution, and Policies." Asking speakers to speculate about developments in the next one hundred years is a mighty order, fraught with the unexpected twists and turns of any future. Before we hear these speakers' prognostications, I thought it might be interesting, maybe enlightening-at least fun-to look back a century. The past is prologue. How well did visionaries at the turn of the twentieth century do in identifying family law issues that would command resolution in their foreseeable future?

My librarian produced two lists: an index to periodicals for the period

1898-1907 and for 1908-1922. Scholars back then were clearly less verbose: One Yale Law Journal article lacked a single footnote and ran four pages in length.²The writers during that early period produced many fascinating works, reflecting the concerns of the time. One article asks whether divorce is a sign of progress or degeneracy.³Another article explores spousal abuse and the amazing common law "rule of thumb" doctrine which authorized a husband to chastize his wife, provided his chosen weapon did not exceed the diameter of his thumb.⁴Yet the most provocative titles concerned the emergence of women's equality claims. Two memorable articles that sound like anthropological studies are the incredulous, Are Women People?⁵and the slightly more lofty, Legal Evolution of Married Women.⁶But as strange as those titles are to modern ears, recall that at the time these articles about the status of women were written, women, whether single or married, were not even political beings; that would not come until 1920, when the Nineteenth Amendment extended the vote to women.⁷Thus, the articles identified the changing status of married women as an issue for reform. In 1900, one author noted that "there has been a steady and growing tendency to recognize the married woman as an individual person, rather than a mere appendage to the man who is her husband."⁸In turn, the recognition of a married woman's right to hold and manage property led to an increased recognition of marriage as an economic partnership, with equal equitable claims owing to both husband and wife.⁹Another scholar noted the connection between recognition of the wife's autonomy and her ability to make use of an antenuptial agreement that might seek to vary her rights from those authorized by the general law. That notion anticipates one of the grand movements in twentieth century family law, from regarding marriage as a status with frozen rights imposed by law, to marriage as an agreement privately ordered by the spouses.¹⁰On a more theoretical plane, Roscoe Pound envisioned the disentanglement of individual interests from group interests in the family as a social institution, positing that legal doctrine was in the fourth stage of development, with increased recognition of the moral and social independence and individualistic interests of each spouse.¹¹In sum, exemplifying the notion that some social visionaries got it right are these early writers who foresaw the reform of the marriage relationship from one of conjugal subjugation and submersion of legal identity to a partnership with equitable rights in each partner to marital property and where the power of each person shaped the contours of their association.¹²

At the opposite margin, there was no clairvoyant scholar in 1900 who foresaw the revolution in the parent-child relationship that has occurred in this century. Several articles spoke of the plight of the illegitimate child, but reforms were then quite modestly aimed at easing the process of legitimating the bastard.¹³No one was so bold as to suggest that all children should be equally entitled to support or equal inheritance rights¹⁴or that punishing the child for the parents' nonmarital status was wrongheaded. One exception to the scholarly silence about children was Judge Julian Mack's famous, folksy Harvard Law Review article spreading the news of the new paradigm of the juvenile court, first established in Chicago in 1898.¹⁵Judge Mack proposed individualized treatment instead of punishment for delinquent children, what

"had best be done in [the child's] interest and in the interest of the state to save him from a downward career."¹⁶How many times thereafter during the twentieth century did someone write or talk about the child's "best interests"? Millions? Billions? And not just the best interests of juveniles accused of crimes, but children in custody disputes, children surrendered for adoption, and abused and neglected children.

Indeed, the "Century of the Child," as the twentieth century has been called,¹⁷was not discerned by anyone writing at its beginning, though Roscoe Pound came close. He discerned the modern growth of "social interests" in the family: a social interest "in the maintenance of the family as a social institution and on the other hand a social interest in the protection of dependent persons, in securing to all individuals a moral and social life and in the rearing and training of sound and well-bred citizens for the future."¹⁸That conceptualization is recognizable as the parens patriae doctrine, which in 1900 was just beginning to be resurrected for new uses.¹⁹The parens patriae doctrine expanded dramatically as the twentieth century unfolded. The Social Security Act brought about the federalization of child welfare initiatives that not only provided protection to abused and neglected children but enforced the payment of child support by parents who financially abandoned their children.²⁰Until then, there was scant attention paid to the collection of child support from separated or divorced parents or the development of custody doctrine, no doubt due in large part to the recent recognition of divorce, even though the popularity of divorce was already then apparent. By 1920, there were 1.5 divorces for every thousand persons, dazzlingly numerous by nineteenth century mores, yet pale compared to current data of 4.0 per thousand.²¹

Indeed, the prime topic of family law interest at the turn of the century was divorce, especially the problem of migratory or "carpetbag" divorce and the larger issues of personal jurisdiction in a federal system in which states claimed subject matter jurisdiction over family matters. During its 1900-1901

Term alone, the U.S. Supreme Court handed down four decisions involving interstate jurisdictional disputes in divorce actions.²²As one contemporary scholar described the standoff: "There has been an unfortunate tendency of the various states towards a sort of legislative war. Certain states have practically invited citizens of other states to come to them for relief from the matrimonial restrictions which prevail in their own jurisdictions."²³The disruption of national harmony was so acute that at the...