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Workshop on Shifting Foundations: Family Law’s Response to Changing Families
Orlando, FL
June 22 - 24, 2015

Why Attend?

Family life and family law have undergone sweeping transformation in recent decades. Families are both more diverse and more unequal. It has now been more than a decade since the American Law Institute published its Principles on the Law of Family Dissolution and since the Supreme Judicial Court of Massachusetts issued its Goodridge v. Department of Public Health decision. The U.S. Supreme Court’s 2013 United States v. Windsor opinion has already spurred broad changes far beyond its invalidation of part of the Defense of Marriage Act, and the Supreme Court’s anticipated 2015 decision on whether the federal constitution requires states to allow or recognize same-sex marriage is likely to have similarly dramatic consequences for families and family law. Consequently, it is both timely and critical to have a workshop that considers foundational questions about family law. This workshop will take up such issues as: how should family law respond to the changing shape of families and to the implications of rising inequality for families? How are the “essential” foundations of family law evolving to do so? What, today, is involved in teaching Family Law?

The shifting demographics of the family provide the context for the workshop. Family life is becoming more diverse as alternative forms of family organization have gained prominence, including cohabitation, LGBTQ relationships, single parent households, one-person households, and other care networks. Family life is also becoming more unequal. Although marriage is no longer the prevailing family form, it remains a primary source of social capital. This reality potentially presents challenges for family law; demographic studies identify a decline in marriage rates and characterize the increasing separation of marriage and parenthood among a growing segment of the U.S. population as part of a class-based marriage divide.

The increasing diversity of family structures has thus served as a catalyst for re-thinking intimate relationships and the role of the state. This process has brought sharply differentiated responses. A growing number of states have diversified legal recognition of intimate partner relationships by opening up marriage laws or by recognizing new relationship forms such as civil unions and domestic partnerships. Conversely, other states have adopted laws designed to re-trench marriage as the archetype relationship that is available to opposite couples only. Core questions have surfaced: How and why should law regulate intimate partner and other adult relationships? How pluralistic should Family Law be?

Parent-child relationships are also in a period of change. Rapidly developing reproductive technologies offer new pathways to parenthood. Biology and parenthood no longer go hand in hand, raising questions about how to define parenthood and whether the law should recognize more than two parents. As marriage and parenthood are increasingly separated, this trend, along with higher rates of family dissolution, results in fewer children living in a marital household and more children living, for at least part of their lives, in single parent households and in households formed by a succession of adult partners. Some scholars and social commentators urge taking steps to reconnect marriage and parenthood, while others view this trend as the occasion to move away from marriage as the proper way to secure the parent-child relationship or co-parent cooperation and toward new legal statuses.

Social scientists warn of growing family economic inequality and its reproduction from one generation to the next. Studies report on the growing, class-based marriage gap, in which wealthier, college educated people marry later in life and become parents during marriage, while a growing number of poorer, less-educated people view marriage as an ideal that is out of reach and become parents outside of marriage.

Asimilar trend began some fifty years ago in minority communities, and there are additional separate issues concerning race that account for family wealth gaps among various groups of Americans. Other inequalities also persist across a number of categories related to Family Law, including sexuality, gender, citizenship, and the treatment of juveniles and children. Law and society continue to grapple with critical questions: what is the meaning of equality and how can it be advanced to best serve families?

Legal education is also undergoing a process of rigorous evaluation and change. Spurred in significant part by challenging economic circumstances faced by law schools, the legal profession, and by the broader society, the legal academy is rethinking what to teach, why and how. The practice of family law itself has also shifted. With the increasing use of alternative dispute resolution methods, the increasing tendency by courts to steer parties to such methods and rising number of pro se litigants, family disputes are now less often resolved by judges and lawyers. Cumulatively, these changes in families, in Family Law, and in legal education have been profound. What is the role of lawyers in connecting families to the law? How should professors approach teaching and student learning in Family Law today?

Finally, this workshop will also consider how family law might be transformed for the future. What will become the foundations of family law’ in the future? And why, what and how should we teach Family Law to tomorrow’s lawyers? Increasingly, Family Law cuts across disciplines such as psychology, gender and sexuality studies, human development and flourishing, political science, the social sciences, the “hard” sciences, and history. This is true not only in academic scholarship, but in the practice of family law as well. Practitioners and judges are routinely being trained in an interdisciplinary manner and view other disciplines as necessary and informative to decisions made in family law cases. Family Law also continues to be expansive in terms of subject matter and includes a growing matrix of regulations across legal disciplines reaching well beyond divorce, custody, paternity, and dependency and neglect.