This Article explores a radical idea at the intersection of family law and local go vernment law. It outlines the surprisingly strong case for allowing local governments a voice in the dispute-resolution function of family law. Under the existing intrastate distribution of power within family law, states set broad policies but delegate enormous discretion to individual judges to implement those policies as they see fit in individual cases. This distribution of power is commonly criticized because it eviscerates predictability and allows a host of biases to infect judicial decisions. This Article offers an alternate distribution of power, where cities can insert themselves between the state and the judge by providing guidance about whether, in that city, free range parenting is generally considered harmful to children or whether, in that city, adultery should trigger a disproportionate award of marital property to the innocent spouse. Such local rules of thumb have the potential to mitigate one of the most intractable problems within family law: how to cabin judicial discretion and make family law more rule-like in the absence of widespread agreement on mid- or even high-level policy goals. More generally, local family law opens up avenues for much-needed policy experimentation, facilitates political entrepreneurship, and has the potential to rein vigora te citizen engagement with local politics. Properly structured, local family law can accomplish all of this without creating a serious risk of races to the bottom, forum shopping, externalities, or minority oppression.
TABLE OF CONTENTS Introduction 1108 I. The Problem 1113 A. Ex Ante Unpredictability 1115 B. Ex Post Illegitimacy 1117 C. Existing Reform Proposals: Rulification 1119 II. Localism's Promise 1173 A. Will Cities Innovate? 1124 B. Policy Experimentation 1127 C. Political Entrepreneurship 1130 D. Participation 1131 E. Sorting 1132 III. Power and Preemption: The Case for Local Rules of Thumb 1134 A. Power: State and Local Matters 1136 1. History 1138 2. Uniformity 1138 3. Externalities 1140 4. Institutional Competence 1142 5. The Private Law Exception and State-Local Partnerships 1143 B. Preemption: The First Horn of the Dilemma 1144 C. Impact: The Second Horn of the Dilemma 1146 IV. Objections 1150 A. Races to the Bottom 1151 B. Forum Shopping 1152 C Externalities and Uniformity 1152 D. Oppressive or Bad Policies 1153 E. Posturing 1158 Conclusion 1159 INTRODUCTION
In Failure to Flourish, Clare Huntington offers a compelling vision for the future of family law. The traditional core of family law needs to be restructured to help ensure that children's relationships with their parents remain strong, stable, and positive. (1) Additionally, institutions outside of the traditional core of family law--like zoning boards--should also be attentive to these policy concerns. (2) Huntington's vision calls for reforms at the local, state, and federal level. This Article focuses on the local level and explores a radical proposal: cities (3) should have the power to weigh in on issues even within the very heart of family law--divorce and child custody.
Some local efforts to influence family law have already been documented. For example, many cities have used their home rule authority to create local domestic partner registries. (4) Several cities--most notably San Francisco--tried unsuccessfully to create local variation in marriage license requirements by issuing licenses to same-sex couples. (5) This Article moves beyond marriage and turns localist scholarly attention toward local regulation of family dissolution and the regulation of families more broadly. (6)
The dominant narrative of family law is that it is created and maintained at the state level. This narrative ignores the actual content of state family law. (7) Although states set out the broad policy goals of family law, they delegate enormous discretion to trial court judges to implement those policies as they see fit in individual cases. Because the state's policies are so broad--for example, judges are asked to split marital property in an "equitable" manner and are asked to do what is in the child's "best interests"--family law is largely created at the level of the individual judge. (8) This has implications for the doctrines that police the boundary between local and state authority. Arguably, many cities already have the power to initiate legislation in this area, and they can do so in ways that avoid existing intrastate preemption doctrine. Cities may have more power over family affairs than scholars have previously acknowledged. Regardless, a surprisingly strong case can be made that they should have more power.
Creating space for a uniquely local voice has the potential to create two distinct sets of benefits. First, city power can accomplish what decades of reform efforts have failed to achieve: to alleviate the problems with, and open up a more productive dialogue about, family law's open-ended standards. Second, local family law is uniquely situated to fulfill the promise of local government law more generally without incurring the costs that traditionally accompany local power.
Family law's open-ended standards ensure that intrastate variation is endemic to divorce law. (9) Some judges think that viewing pornography in private is probative of parental fitness. (10) Others do not. (11) Depending on the specific judge assigned to their case, gay parents could lose custody for engaging in public displays of affection with their partner. (12) Ironically, gay parents who are wary of this possibility could find themselves in front of a different judge and lose custody for not showing enough affection to their partners. (13) This unpredictability infects monetary decisions as well. According to some judges, a stay-at-home mom deserves to be compensated for her sacrifices. (14) But according to others, a stay-at-home mom should get a job and learn to support herself after a divorce. (15)
Existing reform proposals--Huntington's included--seek to rulify family law's open-ended standards. That is, they attempt to convince state legislatures or state appellate courts to provide more concrete guidance to trial courts. (16) Unfortunately, these proposals have been uniformly ignored, in large part because of political stalemate at the state level. This Article explores the possibility of local rather than state reform. Local rulification can accomplish much of what reformers have been seeking. (17)
This Article offers an initial defense of a mild form of local rulification. (18) Although its conclusions are necessarily preliminary, this Article argues that cities should be able to guide judges as they exercise the broad discretion that the state has provided them. At most, cities would be able to require local judges to consider local judgments. (19) These rules of thumb (20) would provide non-binding advice to judges about how to exercise the discretion that the state has given them. They would tell the judge what, in that locality, constitutes an equitable monetary award for a stay-at-home parent, or whether, in that locality, spanking is an acceptable means of disciplining children. Although these advisory rules of thumb have limited teeth, many judges desperately seek out advice to help guide the paralyzingly broad discretion that the state gives them. Other jurisdictions that have experimented with advisory rules of thumb have confirmed that they have a surprisingly large amount of influence. (21)
Although merely advisory, local influence over family law shares many of the benefits of local power more broadly. (22) Properly structured, local power over divorce and child custody can facilitate much-needed policy experimentation, political entrepreneurship, and participation. (23) An ordinance in Berkeley might require judges to consider a local judgment that helicopter parenting is generally harmful to children. San Jose might come to the opposite conclusion. Even if only a few cities experiment, a host of organizations will attempt to assess those experiments so that both the state and other cities can learn from them. (24) City councilmembers can also act as political entrepreneurs and force the state to debate issues that it would rather avoid. A Houston ordinance proclaiming that parents who host overnight guests should rarely get custody could force the state legislature to debate the issue when deciding whether to preempt the ordinance. Finally, local power over family law issues has a unique potential to rekindle the often-ridiculed communitarian benefits of local government. (25) Of all the things that local government might do, family law is one of a select few that are likely to spur significant and sustained citizen engagement.
Of course, local power is not unequivocally positive, but the common negative effects of local power are either absent or can be easily managed in the context of local rules of thumb. (26) Municipal power will not lead to races to the bottom or externalities on other cities. Forum shopping, while theoretically possible, faces a number of practical obstacles and, regardless, can be easily policed. Although local law is normally associated with decreased uniformity, local family law turns this traditional analysis on its head. Open-ended family law standards create judge-by-judge variation that has the effect of creating widespread disuniformity. Moving some aspects of family law to the local level can dramatically increase uniformity. The advisory nature of local rules of thumb radically decreases the likelihood that city councils would be able to oppress local minorities, as do a set of existing constitutional doctrines that create substantial barriers to singling out people for different treatment. (27) Ordinances would not be able to say that the lighter skinned member of an interracial couple should generally get custody, or that mothers...