Academic journal article Fordham Urban Law Journal

On Family Law Localism: A Comment on Sean Hannon Williams's "Sex in the City"

Academic journal article Fordham Urban Law Journal

On Family Law Localism: A Comment on Sean Hannon Williams's "Sex in the City"

Article excerpt

Introduction                                        1175   I. Family Law Localism: The Legal Framework       1176         A. Local Initiative                         1176         B. Preemption                               1181   II. The Place of Local Legislatures in       Resolving Family Law Disputes                 1183 

INTRODUCTION

In his Article "Sex in the City," Professor Sean Hannon Williams addresses the problems of enormous trial court discretion and concomitant unpredictable and inconsistent decisions found in divorce cases by proposing that local governments adopt nonbinding "rules of thumb" that would guide judges in exercising that discretion with respect to issues such as child custody, property division, and income support. (1) He contends that this proposal would fit within the existing legal framework of state-local relations and would advance the goals of both family law reform and local empowerment with respect to family issues. (2) Specifically, he urges that local legislative action could be a significant step towards the "rulification" reform that state legislatures have so far been unable to achieve, while also serving as a springboard for greater local government participation in a range of issues relevant to family welfare. (3) It is an intriguing proposal. My comment focuses on two issues: (i) local power to act on family law matters, specifically the consequences of divorce; and (ii) the appropriate role for local legislative bodies in addressing these issues.

I. FAMILY LAW LOCALISM: THE LEGAL FRAMEWORK

As Professor Williams explains, family law localism presents two distinct but overlapping questions--whether there is local power to act in the first place, and whether, even if in theory a local government has power to legislate on the subject, it has the further power to prevent state preemption of the local measure. (4) These are sometimes referred to as the powers of initiative and immunity, or the sword and the shield. (5) The two issues overlap because, as is often the case, if the relevant state constitutional or statutory provisions are unclear, courts tend to turn to similar criteria--the costs and benefits of statewide uniformity versus local variation; external effects of local actions; history; and relative institutional capacity--for both questions. (6) The two issues are different, though, because there are many matters that are "local enough" that a local government may have power to address them in the first instance, but that are also "state enough" that the state can displace local action.

A. Local Initiative

Starting with local power to act, the general background norm in the United States is Dillon's Rule, which provides that a local government possesses only those powers (i) expressly delegated to it by the state, (ii) necessarily implied in or incident to the express delegation, or (iii) essential to accomplish the expressly delegated powers. (7) Although Dillon's Rule has been supplanted by home rule for most cities and some counties in many states, (8) it remains the governing principle wherever home rule has not been provided. (9) Virginia, for example, remains a Dillon's Rule state, and, as a result, tends to read local regulatory powers narrowly, (10) and Dillon's Rule continues to be invoked in many other states, including recent examples in Illinois, (11) South Dakota, (12) and Vermont. (13) For a Dillon's Rule city or county, any local powers with respect to family law are likely to be closely cabined to the authority expressly granted by the state. Thus, in Virginia, the state supreme court concluded that the state law authorizing counties to provide the dependents of county employees with health benefits did not give the county authority to provide dependent benefits to the unmarried domestic partners of county employees, even

though the benefits were funded solely by the county. (14)

Many states provide some cities and counties with a broader grant of power to act over a range of issues without having to obtain specific state authorization. …

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