Academic journal article Boston University Law Review

Divorce All the Way Down: Local Voice and Family Law's Democratic Deficit

Academic journal article Boston University Law Review

Divorce All the Way Down: Local Voice and Family Law's Democratic Deficit

Article excerpt


Family law's private dispute resolution function-divorce and child custody-relies predominantly on open-ended standards.1 Judges' broad and largely unreviewable discretion invites them to impose idiosyncratic value judgments on families. These powers, combined with local judges' abysmal democratic pedigree and their racial, educational, and class homogeneity, create a democratic deficit in family law. Reformers have sought to solve these problems by asking legislatures and appellate courts to develop top-down rules to cabin judicial discretion.2 That reform strategy has uniformly failed.3

Critiques of family law's open-ended standards, while longstanding, have renewed salience today. Family law's ongoing shift toward mediation is what I call a hydraulic reform.4 Although it has reduced the impact of judges and judicial caprice, it has relocated issues of bias and unpredictability in even less democratically accountable actors like custody evaluators. Technological shifts have also increased the importance of taming discretion. Assisted reproductive technologies have destabilized old rules for parentage, and appellate courts are increasingly turning to open-ended standards to decide who gets to be a parent.5 Judges now ask whether a "parent-like" relationship formed between the child and the relevant adult.6 Would a woman raising her grandchild alongside her daughter qualify? Can an older sibling have a parent-like relationship with her younger brother? Can more than two people have a parent-like relationship with a child? These issues are now decided by idiosyncratic trial court judges with little lived experience with the relevant family forms, and little to no appellate or legislative oversight.7

This Article outlines a reform strategy that is novel along two dimensions. First, it turns the attention of reformers downward, not upward. The future of family law reform is local. Cities,8 school boards, and groups of local trial court judges can all play an important role in family law reform.9 Second, it introduces a new space along the rules-standards continuum: rules of thumb. Although each of these two innovations-localism and rules of thumb-could be pursued independently, the combination yields important synergies.

There are powerful benefits to creating formal pathways for local entities like cities and school boards to influence family law policy. City councils10 have a different, and arguably stronger, democratic pedigree than judges to make the value judgments that family law currently requires. Should judges favor athletic or academic achievement when deciding what is in the child's best interest? How many extramarital affairs justifies an unequal division of marital property? What if the "affair" was with a twelve-year-old?11 There are no objectively correct answers to these questions. Just as judges might seek advice from experts in child psychology when the relevant question concerns a child's post-traumatic stress disorder ("PTSD") or attention deficit hyperactivity disorder ("ADHD"), it makes sense for judges to seek advice from institutions that purport to represent the community when value judgments are integral to the judge's decision. Allowing city councils to weigh in on family law issues could make those value judgments more legitimate and better informed. Similar arguments could be made about school boards, which also potentially possess important expertise about the effects of divorce on children's academic performance and emotional well-being.

Empowering majority-minority cities and school districts is likely to create particularly illuminating feedback about the proper role of the state in adjudicating family conflict. Family law scholars have long lamented the gap between real families and family law, often arguing that family law is designed only for the elite.12 Today, many issues central to family law look quite different to different segments of society.13 For example, the non-marital birth rate hovers around five percent for women with college degrees and about eighty-five percent for women without high school degrees. …

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