Alstott: "Private Tragedies? Family Law as Social Insurance"

Anne L. Alstott (Harvard Law School) has posted Private Tragedies? Family Law as Social Insurance, Harvard Public Law Working Paper No. 09-64, on SSRN.  Here is the abstract:

Family law is full of private tragedy. Case after case pits one family member against another in a zero-sum struggle for resources. Spouses battle over limited assets; parents clash over child support; and children fight each other for resources when parental income is stretched across multiple families.

But family law doesn’t simply pick up the pieces when individuals make bad choices or suffer bad luck. Instead, the law creates distributive rules that help determine which choices are bad ones - and whose bad luck carries ruinous consequences. Taking this view, it is not just the dysfunctional who live in law’s domain: successful families flourish amidst legal rules that protect some from life’s risks while leaving others vulnerable.

In this essay, I suggest that family law constitutes a form of social insurance, supplementing public programs that address life risks including poverty, unemployment, and disability. Both family law and social insurance recognize some relationships (and not others) and protect against some risks (and not others). Further, both systems of law can be understood as distributing risks ex ante - rather than simply addressing failure ex post.

To make the discussion concrete, I focus on two cases, one involving spousal support and disability, and the other involving child support for multiple families. The cases illustrate the interdependence of financial entitlements in family law and in social welfare and demonstrate that a range of changes in family law, social insurance rules, or other elements of law could alter the distribution of life’s risks - and thus the likelihood and consequences of apparently “private” tragedies.

The essay also builds on these examples to outline a larger project. Today, large-scale social insurance programs shield individuals against disruptions in working life, including retirement, disability, and unemployment. And yet disruptions in affective life - a divorce, a breakup, a parent’s exit, even living without a family - can impose equally severe shocks on individual lives. While at first it may seem uncomfortable to consider personal relationships a matter for state concern, I suggest that the normative theories and analytical tools used in structuring conventional social insurance can also be brought to bear in considering the possibility of insurance for disruptions in affective life. 

MR