Tuesday, May 31, 2022

McClain & NeJaime: "The ALI Principles of the Law of Family Dissolution: Addressing Inequality Through Functional Regulation"

Linda C. McClain (Boston University) & Douglas NeJaime (Yale) have posted to SSRN their article The ALI Principles of the Law of Family Dissolution: Addressing Inequality Through Functional Regulation, The ALI at 100: Essays on Its Centennial (Andrew S. Gold & Robert W. Gordon, eds., Forthcoming 2023).  Here is the abstract:

As part of a volume commemorating the American Law Institute on its centennial, this Essay reflects on the ALI Principles of the Law of Family Dissolution. We show how the Principles’ drafters intervened in cutting-edge issues at a time of flux in family law in ways that elaborated a progressive agenda that would continue to gain traction in the years after the Principles’ publication in 2000. Beginning from the assumption that family law should reflect how people actually live, the drafters developed a functional, rather than formal, approach to legal regulation. Such an approach, they believed, could vindicate commitments to equality and advance family law reform goals of predictability, consistency, and fairness. Drawing on archival materials and interviews, we show how concerns with intra-family inequality—particularly gender-differentiated roles in different-sex couples—and inter-family inequality—particularly marital-status distinctions that dovetailed with the exclusion of same-sex couples—led the drafters to articulate generally applicable principles capable of accommodating families’ lived experiences.

Explicit adoption of the Principles’ recommendations by courts and legislatures has been rare. Yet, we reject a view of the Principles as a failed project. We understand the Principles not simply as a directive to lawmakers and judges but instead as a meaningful intervention in ongoing debates among courts, legislatures, advocates, and scholars about the future of family law. In the intervening decades, the Principles’ functional approach, we show, has grown dramatically across jurisdictions, and this growth has been spurred in large part by efforts to eradicate inequality within and between families. Parentage law, for example, has turned to functional criteria to protect parent-child relationships regardless of the gender, sexual orientation, or marital status of the parent. While we find less concrete evidence of the Principles’ influence in the domain of adult-adult relationships, we nonetheless observe how the Principles’ status-based approach to nonmarital relationships continues to serve as a foundational authority in ongoing, and increasingly urgent, debates over legal remedies for unmarried partners.


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