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Family Law Reimagined
Jill Elaine Hasday
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Family Law Reimagined
Jill Elaine Hasday
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About This Book
One of the law's most important and far-reaching roles is to govern family life and family members. Family law decides who counts as kin, how family relationships are created and dissolved, and what legal rights and responsibilities come with marriage, parenthood, sibling ties, and other family bonds. Yet despite its significance, the field remains remarkably understudied and poorly understood both within and outside the legal community. Family Law Reimagined is the first book to evaluate the canonical narratives, examples, and ideas that legal decisionmakers repeatedly invoke to explain family law and its governing principles. These stories contend that family law is exclusively local, that it repudiates market principles, that it has eradicated the imprint of common law doctrines which subordinated married women, that it is dominated by contract rules permitting individuals to structure their relationships as they choose, and that it consistently prioritizes children's interests over parents' rights. In this book, Jill Elaine Hasday reveals how family law's canon misdescribes the reality of family law, misdirects attention away from the actual problems that family law confronts, and misshapes the policies that legal authorities pursue. She demonstrates how much of the "common sense" that decisionmakers expound about family law actually makes little sense. Family Law Reimagined uncovers and critiques the family law canon and outlines a path to reform. Challenging conventional answers and asking questions that judges and lawmakers routinely overlook, it calls on us to reimagine family law.
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NOTES
Introduction
1. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992) (citation and internal quotation marks omitted); see also Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816, 842 (1977); Moore v. City of E. Cleveland, 431 U.S. 494, 499 (1977) (plurality opinion).
2. See Robert C. LaFountain et al., Nat’l Ctr. for State Courts, Examining the Work of State Courts: An Analysis of 2010 State Court Caseloads 13–17 (2012).
3. See, e.g., Harold Bloom, The Western Canon: The Books and School of the Ages (1994); J.M. Balkin and Sanford Levinson, “The Canons of Constitutional Law,” 111 Harv. L. Rev. 963 (1998).
4. For an early and influential recognition of the tendency to describe history as a story of steady progress, see H. Butterfield, The Whig Interpretation of History (1931).
I. Family Law Exceptionalism
1. Martha Albertson Fineman, “What Place for Family Privacy?,” 67 Geo. Wash. L. Rev. 1207, 1207 (1999).
2. Lee E. Teitelbaum, “Placing the Family in Context,” 22 U.C. Davis L. Rev. 801, 801 (1989).
3. Janet Halley and Kerry Rittich, “Critical Directions in Comparative Family Law: Genealogies and Contemporary Studies of Family Law Exceptionalism,” 58 Am. J. Comp. L. 753, 754 (2010).
1. Federalism and the Family
1. 133 S. Ct. 2675, 2691 (2013) (quoting In re Burrus, 136 U.S. 586, 593–94 (1890)).
2. I first introduced my definition of family law in a law review article. See Jill Elaine Hasday, “The Canon of Family Law,” 57 Stan. L. Rev. 825, 871 (2004). Several family law scholars have subsequently found my definition helpful and used it in their own work. See, e.g., Kerry Abrams, “Immigration Law and the Regulation of Marriage,” 91 Minn. L. Rev. 1625, 1629 n.1 (2007); Ann Laquer Estin, “Sharing Governance: Family Law in Congress and the States,” 18 Cornell J.L. & Pub. Pol’y 267, 272 n.20 (2009); Meredith Johnson Harbach, “Is the Family a Federal Question?,” 66 Wash. & Lee L. Rev. 131, 134 n.8 (2009); Shani King, “The Family Law Canon in a (Post?) Racial Era,” 72 Ohio St. L.J. 575, 579 n.13 (2011); David B. Thronson, “Custody and Contradictions: Exploring Immigration Law as Federal Family Law in the Context of Child Custody,” 59 Hastings L.J. 453, 457 n.24 (2008).
3. Trammel v. United States, 445 U.S. 40, 50 (1980); see also Mansell v. Mansell, 490 U.S. 581, 587 (1989); Thompson v. Thompson, 484 U.S. 174, 186 (1988); Moore v. Sims, 442 U.S. 415, 435 (1979); Williams v. North Carolina, 325 U.S. 226, 233 (1945); De la Rama v. De la Rama, 201 U.S. 303, 307 (1906); Barber v. Barber, 62 U.S. (21 How.) 582, 584 (1859).
4. Hillman v. Maretta, 133 S. Ct. 1943, 1950 (2013).
5. Sosna v. Iowa, 419 U.S. 393, 404 (1975); see also Zablocki v. Redhail, 434 U.S. 374, 398 (1978) (Powell, J., concurring in the judgment).
6. De Sylva v. Ballentine, 351 U.S. 570, 580 (1956).
7. United States v. Windsor, 133 S. Ct. 2675, 2691 (2013) (quoting In re Burrus, 136 U.S. 586, 593–94 (1890)); see also Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004); Boggs v. Boggs, 520 U.S. 833, 848 (1997); Rose v. Rose, 481 U.S. 619, 625 (1987); McCarty v. McCarty, 453 U.S. 210, 220 (1981); Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979); Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 383 (1930); Simms v. Simms, 175 U.S. 162, 167 (1899).
8. Santosky v. Kramer, 455 U.S. 745, 770 (1982) (Rehnquist, J., dissenting) (footnote omitted).
9. Mary Ann Mason, The Equality Trap 77 (1988).
10. Anne C. Dailey, “Federalism and Families,” 143 U. Pa. L. Rev. 1787, 1790 (1995).
11. Robert A. Destro, “Law and the Politics of Marriage: Loving v. Virginia After 30 Years Introduction,” 47 Cath. U. L. Rev. 1207, 1226 (1998).
12. Naomi R. Cahn, “Models of Family Privacy,” 67 Geo. Wash. L. Rev. 1225, 1230 n.30 (1999).
13. Margaret Ryznar and Anna Stepień-Sporek, “To Have and To Hold, for Richer or Richer: Premarital Agreements in the Comparative Context,” 13 Chap. L. Rev. 27, 30 (2009).
14. Martin Guggenheim, What’s Wrong with Children’s Rights 81 (2005).
15. Theresa M. Beiner, “Female Judging,” 36 U. Tol. L. Rev. 821, 832 (2005).
16. Ellen Kandoian, “Cohabitation, Common Law Marriage, and the Possibility of a Shared Moral Life,” 75 Geo. L.J. 1829, 1831 (1987).
17. Samuel Green and John V. Long, Marriage and Family Law Agreements § 1.10, at 13 (1984).
18. Lynn D. Wardle and Laurence C. Nolan, Fundamental Principles of Family Law 29 (2d ed. 2006).
19. Harry D. Krause et al., Family Law: Cases, Comments, and Questions 20–21 (7th ed. 2013).
20. 41 Am. Jur. 2d “Husband and Wife” § 45 (2005).
21. Violence Against Women Act of 1994, Pub. L. No. 103–322, § 40,302, 108 Stat. 1902, 1941 (codified at 42 U.S.C. § 13981 (2006)), invalidated by United States v. Morrison, 529 U.S. 598, 601–02 (2000).
22. Defense of Marriage Act, Pub. L. No. 104–199, § 3, 110 Stat. 2419, 2419 (1996) (codified at 1 U.S.C. § 7 (2012)), invalidated by United States v. Windsor, 133 S. Ct. 2675, 2696 (2013).
23. 514 U.S. 549 (1995).
24. See U.S. Const. art. I, § 8, cl. 3.
25. See Wickard v. Filburn, 317 U.S. 111, 118–29 (1942).
26. See Lopez, 514 U.S. at 551.
27. See id. at 564.
28. Id.
29. Id. at 564–65.
30. Id. at 565.
31. Id. (citation omitted).
32. Id. at 585 (Thomas, J., concurring).
33. Id. at 624 (Breyer, J., dissenting) (citations omitted).
34. See, e.g., The Federalist No. 80, at 478 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
35. See U.S. Const. art. III, § 2, cl. 1.
36. 28 U.S.C. § 1332(a) (2006) (emphasis added).
37. Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992).
38. Id. at 704.
39. United States v. Lopez, 514 U.S. 549, 564 (1995).
40. See 439 U.S. 572, 573 (1979).
41. Id. at 581 (quoting In re Burrus, 136 U.S. 586, 593–94 (1890)).
42. 481 U.S. 619, 625 (1987).
43. 62 U.S. (21 How.) 582 (1859).
44. See id. at 588–93; id. at 600–03 (Daniel, J., dissenting).
45. See id. at 592–94, 597–98 (majority opinion). A later Supreme Court case held that a wife who lived in a separate state from her husband would be treated as a legal domiciliary of the state she lived in for purposes of filing a divorce suit in that state’s courts. See Cheever v. Wilson, 76 U.S. (9 Wall.) 108, 123–24 (1870).
46. Barber, 62 U.S. (21 How.) at 584.
47. Id. at 601 (Daniel, J., dissenting).
48. See In re Burrus, 136 U.S. 586, 593–94 (1890).
49. See, e.g., Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 382–83 (1930); De la Rama v. De la Rama, 201 U.S. 303, 307–08 (1906); Simms v. Simms, 175 U.S. 162, 167–68 (1899); Cheely v. Clayton, 110 U.S. 701, 705 (1884).
50. 504 U.S. 689, 694 (1992).
51. See id. at 695–97, 700–01.
52. Id. at 700.
53. See id. at 691, 694–95...