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Abstract

What explains U.S. family law? What are the origins of the current chaos and controversy in the field, the home of some of the most vituperative debates in public policy? To answer these questions, this Article identifies and examines family law's foundational principles. It 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. Third, it shows that the concepts of family law in turn embody two distinct underlying principles--Biblical traditionalism 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 family law's structure, the Article next evaluates these principles, and family law as the expression of them. It concludes that each principle is individually flawed, and, taken together, they are too often in unproductive tension. Examining family law's expression of the principles both demonstrates this tension and illuminates the field's current controversies--including those surrounding marriage, same-sex couples and their families, and the balance between parents' and children's rights--and the sources of their intractability. It becomes clear that the very foundational principles of U.S. family law doom the field to incoherence and thus must be revised. At a minimum, this Article seeks to expose family law's generally implicit underlying principles and launch a much-needed debate on whether its current 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.

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