The canon of family law.

Author:Hasday, Jill Elaine
 
FREE EXCERPT

INTRODUCTION I. THE RELATIONSHIP BETWEEN FAMILY LAW AND SOCIAL INEQUALITY A. Overstating Change over Time 1. Status and contract 2. Coverture 3. Property norms in the law of parenthood B. Understating Distinctions Between Families 1. The canonical examples 2. The noncanonical examples C. The Consequences of the Canon and the Possibilities for Change: The Debate over Divorce Law II. THE RELATIONSHIP BETWEEN FAMILY LAW AND FEDERALISM A. The Exclusion of Federal Law from the Family Law Canon B. The Consequences of the Canon and the Possibilities for Change: The Debates over the Violence Against Women Act and the Defense of Marriage Act III. THE RELATIONSHIP BETWEEN FAMILY LAW AND WELFARE LAW A. The Exclusion of Welfare Law from the Family Law Canon B. The Consequences of the Canon and the Possibilities for Change: The Debate over the Personal Responsibility Act CONCLUSION INTRODUCTION

What is the "canon" of family law? By canon, I mean the ways of thinking about family law that are widely shared by legal scholars and especially by legal authorities, like legislators and judges. The existing literature on canons, which has long centered on the literary canon and has recently turned to the constitutional law canon, (1) has most commonly understood a canon to be a set of foundational texts that exemplify, guide, and constitute a discipline. (2) In part, the family law canon tracks this traditional focus on the inclusion and exclusion of texts, even if the family law canon does not take the form of a short and definitive reading list. Some of the shared ways of thinking about family law address which official legal sources, such as statutes and judicial decisions, fall within family law and which fall outside of it. But canons are not necessarily limited to texts like cases and statutes. (3) Stories and examples can also be part of a canon. In fact, there is widespread agreement among legal authorities and legal scholars that certain stories and examples explain and describe family law and its governing principles. The family law canon consists of both official legal sources and these stories and examples.

No one has examined family law as a field that might have a canon. Yet the family law canon importantly determines what counts as family law, what constitutes a good reason or a convincing argument in a family law debate, what explanations have to be given, and what does not have to be explained. The family law canon operates, moreover, at the level of common sense, powerful enough that its tenets are taken to require no reappraisal. Indeed, the family law canon casts stark light on a feature of canons that has been given too little attention in the scholarship on the literary canon and even in the scholarship on the constitutional law canon: the practical consequences that a canon can have in the world. The family law canon, for example, has enabled state legislatures and state courts enacting and defending changes in divorce law to contend that family law no longer supports women's inequality and so no longer needs to worry about women's position upon divorce. The family law canon has allowed courts, judges, judicial organizations, congressmen, and legal scholars to mount powerful and effective campaigns against federal statutes simply on the ground that the statutes constitute federal family law and are supposedly unprecedented and inappropriate for that reason alone. The family law canon has permitted courts and Congress to avoid explaining why the law employs very different rules to regulate the familial rights and responsibilities of the poor.

The silence about the family law canon does not indicate the absence of a family law canon, but it does reflect more general trends in the work of academic theorists. Academic theorists have devoted much less attention to family law than they have spent on thoroughly examining legal subjects like constitutional law. (4) Academic theorists have also frequently written about legal canons as if they emanate only from prestigious, powerful, centralized, and federal institutions like the United States Supreme Court. (5) These theorists may have ignored the family law canon because they incorrectly assumed--ironically, because of the power of the family law canon itself--that an institution like the Supreme Court has played little role in the development of family law.

This Article examines the family law canon, analyzes the consequences of the way that the canon is constructed, and explores how contesting the canon's construction might make a difference in practical terms. As it reveals, legislatures, courts, and legal scholars have created the family law canon, and the family law canon has in turn shaped how these legal authorities and scholars think about family law, and how they teach their students and successors to view the field. Legislatures and courts have the most influence over the family law canon because they affect family law most directly. Their work has inherent and independent legal force, regardless of whether legal scholars or practicing lawyers endorse or approve of it. (6) Legal scholars, in turn, influence the family law canon through their scholarship and their teaching. The academic community's scholarship helps to create, promulgate, and reinforce the widely shared ways of thinking about family law, and legal scholarship can influence legislatures and courts. Legal scholars also help to form and perpetuate the family law canon through their family law courses and their family law casebooks that structure the content and focus of many family law courses. (7) How family law is taught--what is included and excluded, what stories are told about family law and what examples are used--helps determine how the next generation of lawyers, including some future legal authorities and legal scholars, will understand family law and its guiding principles.

At present, the family law canon misdescribes both the content of family law and its governing principles. The family law canon distorts how legal authorities and legal scholars understand family law in a way that can distort their judgments about specific family law disputes. Challenging the family law canon's construction--opening to scrutiny and question what is now taken to be a matter of common sense--can reorient our perspective on family law and our ways of thinking about the field. It is the first step toward changing the family law canon and restructuring family law debates, altering the terms on which they take place, transforming what counts as a convincing argument, and reforming how decisions are made.

To illustrate how the family law canon now operates, the effects it has had, and how it might be challenged, this Article focuses on three of the family law canon's most prominent themes. The first theme, examined in Part I, involves the relationship between family law and social inequality. As we will see, the family law canon classifies almost every inequality in family law as part of the past rather than the present. It both overstates the changes that have occurred in family law over time and understates the distinctions that family law currently draws between families. This construction of the family law canon has allowed legal authorities considering and enacting family law policies that might harm historically subordinated groups to argue that family law no longer supports social inequality and need no longer worry about the status of historically subordinated people. For instance, the state legislatures and state courts that have made and defended a wide variety of changes in divorce law in recent years have relied heavily on the canonical understanding of the relationship between family law and social inequality to contend that family law no longer needs to be concerned about women's status at divorce because family law now upholds women's equality.

Challenging the family law canon's construction, however, reveals that there are aspects of modern family law that continue to sustain social inequality, including the social inequality of women. It makes clear that it is simply not a convincing argument in a family law debate, like the divorce debate, to contend that family law already supports social equality firmly and completely. Equality concerns cannot be assumed away like that. Instead, an important issue in any family law debate is whether the particular family law measure in question is consistent with equality or not.

The second theme, considered in Part II, involves the relationship between family law and federalism. The family law canon contends that family law is, and has always been, a matter of exclusively local jurisdiction. This construction of the family law canon suggests that a crucial and unsettled question in family law is whether the federal government can or should make family law at all. It has permitted legal authorities and legal scholars to oppose specific instances of federal family law on the ground that any kind of federal family law is unprecedented and inappropriate by definition, even where the authorities and scholars concede that the particular law at issue would otherwise advance worthy goals and purposes.

For instance, judges and judicial organizations never challenged the substantive aims of the civil rights remedy in the federal Violence Against Women Act of 1994 (VAWA), (8) which created a federal civil right to be free from gender-motivated violence. (9) But judges and judicial organizations (dubiously) identified VAWA's civil rights remedy as a form of federal family law, and then used claims about the inherently local nature of family law to secure significant limitations on the civil rights remedy before it was enacted by Congress. The argument that federal family law is unprecedented and categorically inappropriate also played a pivotal part in the Supreme Court decision that ultimately found even VAWA's modified civil rights remedy to...

To continue reading

FREE SIGN UP