Document Type
Article
Publication Title
Harvard Law Review
Volume
136
Publication Date
2023
Abstract
Family law is a central battleground for a polarized America, with seemingly endless conflict over abortion, parental control of school curricula, gender-affirming health care for children, and similar flash points. This is hardly surprising for an area of law that implicates fundamental concerns about equality, bodily autonomy, sexual liberty, gender norms, parenting, and religion. Polarization poses significant risks to children and families, but centering contestation obscures another important reality. In many areas of doctrine and policy, family law has managed to avoid polarization, even for politically and socially combustible issues. Instead, states are converging on similar rules and policies, working toward consensus on once-divisive issues, and settling into a pluralism that does not line up neatly with the red-blue divide.
What ties together these widespread but underappreciated patterns of convergence, depolarization, and nonpartisan pluralism? This Article argues that a deep, underlying commonality is a pragmatic method of decision- and policymaking. Polarization has a long history in the United States, but so, too, does pragmatism. With roots in nineteenth-century philosophy and now deployed by advocates and scholars in multiple contexts and disciplines, the living tradition of American pragmatism rejects contestation over abstract ideals in favor of solving problems through experience-based learning, experimentation, application of empirical evidence, and contextualized decisionmaking. As this Article demonstrates, across contemporary family law, judges and policymakers are eschewing debates about political ideology and instead are focusing on whether a doctrine or policy works to enhance specific, concrete, and relatively uncontested aspects of child and family well-being. These legal actors base decisions on available evidence and center the lived experience of those enmeshed in the legal system. And they tailor each decision to its specific context.
Recognizing a common methodological foundation — what this Article calls pragmatic family law — has implications for scholars, legal actors, and advocates. Crystallizing the distinct approach to decision- and policymaking highlights its utility in advancing wellbeing and encourages legal actors and advocates to use the method more intentionally. It invites scholars to weigh the advantages of this approach against others, notably rights-based litigation and values-based debate. And it demonstrates how pragmatism can recalibrate family law doctrine to mitigate concerns about indeterminacy and provide direction for institutional reform.
Identifying pragmatism as a distinct approach also underscores its significant limitations, especially in addressing the root causes of racial inequity. Many instances of pragmatic family law equally or disproportionately benefit children and families of color, but these doctrines and policies are typically framed in race-neutral terms. When a problem is understood to affect primarily families of color, too often lawmakers do not develop pragmatic solutions. Accordingly, pragmatic family law has had limited traction in dismantling structural inequity — at least thus far. In short, pragmatic family law is no panacea.
Recommended Citation
Clare Huntington,
Pragmatic Family Law, 136 Harv. L. Rev. 1501
(2023)
Available at: https://ir.lawnet.fordham.edu/faculty_scholarship/1327
