Family Structure, Children, and Law

The claim that “marriage is good for children” has long helped ground arguments for the institution’s extraordinary state support. But how sound is this empirically based claim and the normative conclusion drawn from it—namely, that marriage merits this extraordinary support? This Essay reviews recent studies in the social sciences and determines that the “marriage effect” on children is difficult to isolate and all too often vastly overstated. Thus the normative conclusion, inextricably linked to its supposed empirical premise, is deeply flawed

Principles of U.S. Family Law

What explains U.S. family law? What are the origins of the current chaos and controversy in the field, the home of some of the most vituperative debates in public policy? To answer these questions, this Article identifies and examines family law\u27s foundational principles. It undertakes a conceptual analysis of the legal practices that govern families. This analysis has yet to be done, and its absence hamstrings constructive thought on our family law. The Article develops a typology that conceptualizes U.S. family law and exposes its underlying principles. First, it identifies the significant elements, or rules, of family law. Second, it demonstrates that these rules reflect or embody four important conceptsconjugality, privacy (familial as well as individual), contract, and parens patriae. Third, it shows that the concepts offamily law in turn embody two distinct underlying principles-Biblical traditionalism and liberal individualism. From these powerful principles, we can derive modern U.S. family law: They explain what our family law is. With this deepened understanding of family law\u27s structure, the Article next evaluates these principles, and family law as the expression of them. It concludes that each principle is individually flawed, and, taken together, they are too often in unproductive tension. Examining family law\u27s expression of the principles both demonstrates this tension and illuminates the field\u27s current controversies-including those surrounding marriage, same-sex couples and their families, and the balance between parents\u27 and children \u27s rights-and the sources of their intractability. It becomes clear that the very foundational principles of U.S. family law doom the field to incoherence and thus must be revised. At a minimum, this Article seeks to expose family law\u27s generally implicit underlying principles and launch a much-needed debate on whether its current principles are desirable, or even defensible. More ambitiously, the Article aims to ground a new jurisprudence offamily law that better reflects the social goals and needs of contemporary U.S. society

Mistaking Marriage for Social Policy

This Article examines the role of marriage in society, focusing on the state\u27s use of marriage as a proxy for desirable outcomes in social policy. Its analytical point of departure is the normative vision of modern marriage embraced by many of its proponents. From there, the idealized marriage is analyzed, not as a monolithic, opaque institution, but as one whose functional components may be identified and examined. The Article identifies the following as the primary functions of the normative marital family: expression; companionship; sex/procreation; caretaking; and economic support or redistribution. Analyzing the roles in society of each of these functions, it concludes that: (1) the expressive and companionate functions of marriage provide no societal benefit sufficient to justify state interference in those functions; (2) its purely sexual and procreative functions merit privacy and should, in all respects, be treated no differently than nonmarital sex and procreation; but (3) its caretaking and economic support functions benefit society significantly. Indeed, here the state\u27s interest is at its apex. Accordingly, direct support of these two closely related functions, rather than the crude proxy of marriage in its entirety, should be the focus of state social policy in this area