Academic journal article Texas Law Review

Family Law's Loose Canon

Academic journal article Texas Law Review

Family Law's Loose Canon

Article excerpt

Family Law's Loose Canon FAMILY LAW REIMAGINED. By Jill Elaine Hasday. Cambridge, Massachusetts: Harvard University Press, 2014. 307 Pages. $45.00.

I. Introduction

Family law has come a long way. Once occupying at best a marginal role in the law school curriculum-and an almost unmentionably low rank in the legal profession-family law has risen in every respect.1 Now an undeniably complex, intellectual, and dynamic area for students, lawyers, and researchers alike, family law even has its own canon. The existence, content, scope and pitfalls of this canon-"the dominant narratives, stories, examples, and ideas that judges, lawmakers, and (to a less crucial extent) commentators repeatedly invoke to describe and explain family law and its governing principles"-are the centerpiece of Jill Hasday's thoughtful new book, Family Law Reimagined.2

The family law canon, Hasday argues, is not "limited to texts," and "does not take the form of a short and definitive reading list."3 It is, rather, "a series of overriding stories that purport to make sense of how the law governs family members and family life," stories that are "so embedded in the field" and "reiterated, reinforced, and relied on" so often that "they are routinely assumed to be matters of common sense-so taken for granted as to supposedly require no explanation or defense."4 But there's a cost to this level of comfort with the common narratives-the canon, Hasday suggests, "helps structure and constrain family law's imaginative universe."5 Moreover, the canon "misdescribes the reality of family law, misdirects attention away from the actual problems that family law confronts, and misshapes the policies that courts, legislatures, and advocates pursue."6

In this Review, I will explore the main themes of the book, which first depicts the components of the family law canon and then suggests what is missing from it. Then, I will consider Hasday's normative claim-that the canon is ultimately more harmful than beneficial. I focus in Part III on the fall of the federal Defense of Marriage Act and suggest that the existence of a family law canon, even a flawed one, made it easier to smoke out Congress's true, and malignant, intent. Even a loose "canon" sometimes hits its target. In Part IV, I examine the perils of an imperfect canon, agreeing with Hasday that there are many concrete instances in which, relying on canonical narratives, courts and legislators have missed the opportunity to freshly evaluate or construct laws and policies appropriate for the modern family. Parentage law, which determines which adults have legal rights to which children, is just such a victim. Hampered by the narrative of family law's break from its past, and the narrative about the child-centric nature of family law, courts and lawmakers have struggled mightily to apply rules designed for an entirely different modal family to the vast spectrum of families they confront today.

II. The Crux of the Canon and Its Limitations

Family Law Reimagined opens, powerfully, with two canonical stories that shape our understanding of family law. But first, it asks, what do we mean when we talk about "family law"? Hasday relies on the following definition: "[F]amily law regulates the creation and dissolution of legally recognized family relationships and determines legal rights and responsibilities that turn on family status."7 Defining family law is important, Hasday argues, because the canon is shaped by the notion of what she terms "family law's exceptionalism"-that the field is "distinctly set off from other areas of the law, so that legal rules and presumptions in force elsewhere do not apply or are actually reversed within family law."8 And when we do talk about family law, she suggests, we tend to offer two common observations: (1) family law is a matter of state, rather than federal, law and (2) the family is insulated from the principles of market exchange that otherwise pervade law. …

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