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.