Family Law Reviews
and the Baby Carriage:
The Article begins with several examples of current social practices that scramble the sequence of love, marriage, and baby carriage, and considers how such practices both recognize and resist the conventional sequence. It then illustrates how the notion of marriage and parenthood as social institutions and the channelling function feature in several recent judicial opinions addressing challenges to state marriage laws brought by same-sex couples or defining the boundaries of legal parenthood. It points out parallels between these judicial opinions and arguments made in public debates over marriage about the channelling function and the role of marriage in ordering — or managing — heterosexuality. It also highlights how the various functions of family law are in evident tension in some of these opinions. The Article concludes with several reflections about the continuing relevance of the concept of the channelling function in light of challenges to the conventional sequence of love, marriage, and the baby carriage.
McClain, Linda C., "Love, Marriage, and the Baby Carriage: Revisiting the Channelling Function of Family Law" . Cardozo Law Review, Vol. 28, No. 101, 2007 Available at SSRN: http://ssrn.com/abstract=980050
Federalism and the
In implementing a new approach to interstate divorce disputes, the Court embraced no-fault and mutual consent approaches to jurisdiction over divorce, helping to clear the way for the divorce reforms of later decades. By separating the test for jurisdiction to enter a divorce decree from the test for jurisdiction over its financial and custodial aspects, the Court signaled that the incidents of marriage were a more appropriate state concern than divorce prevention. Although these cases preceded the Court's turn toward a new substantive due process approach to family law in the 1960s, the opinions evidence a strong concern for the individual interests involved in marriage and divorce, and this concern is central to the Court's redefinition of state power over divorce.
Laquer Estin, Ann, "Family Law Federalism and the Origins of Modern Divorce Law" (August 18, 2006). U Iowa Legal Studies Research Paper No. 06-03 Available at SSRN: http://ssrn.com/abstract=926552
Boyd Law Building, Iowa City , IA 52242,
Keywords: divorce, no-fault divorce laws, unilateral divorce laws, fault, household bargaining, spouse, household production, household specialization, female labor force participation, fertility, home ownership
Working Paper Series
What explains U.S. family law? To answer this question, this Article 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 concepts - conjugality, privacy (familial as well as individual), contract, and parens patriae. Finally, it shows that the concepts of family law in turn embody two distinct underlying principles - Biblical naturalism 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 its structure, the Article next evaluates family law as the expression of it principles. It concludes that each principle is individually flawed; and, taken together, they are too often in unproductive tension. They thus doom U.S. family law to incoherence and must be revised.
At a minimum, this Article seeks to launch a much-needed debate in family law on whether our current foundational principles are desirable, or even defensible. More ambitiously, the Article aims to ground a new jurisprudence of family law that better reflects the social goals and needs of contemporary U.S. society.
Suggested Citation: Hamilton , Vivian , "Principles of U.S. Family Law" (April 2006). Available at SSRN: http://ssrn.com/abstract=896322
"Harmony in the married
state is the very first object to be aimed at."
"I do not charge the judges with wilful and
ill-intentioned error; but honest error must be arrested where its
toleration leads to public ruin. As
the safety of society, we commit honest maniacs to Bedlam; so judges should
be withdrawn from their bench whose erroneous biases are leading us to
dissolution. It may, indeed, injure them in fame or in fortune; but it saves
the republic, which is the first and supreme law."
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Inaugurated on October 14, 2007