FamilyLawinAmerica.doc

Family Law in America: A Genealogy Janet Halley Royall Professor of Law, Harvard Law School  Family Law in America: A Genealogy Introduction I. The Legal Relations: Blackstone and Reeve II. Contract … and a Civil Institution: Story and Parsons … and Story III. Receiving “Status”: Story and Lord Robertson IV. Status Not Contract: Bishop V. The Paradox of Marriage as Status not Contract: Maynard v. Hill VI. Status Lags: Maine VII. The Newly “Domestic” Relations: Schouler VIII. The Rise of Contract: Keener and Bishop IX. “Family Law”: A Work of Many Hands Conclusion  Introduction What is the place of the family in legal scholarship and teaching, in deep, implicit ideas about how our legal order is arranged? How did it get to be that way? This Article tells, for the first time, the story of American family law: how the law of “Domestic Relations” emerged as a distinct legal topic in late-nineteenth-century legal treatises and how “Family Law” eventually replaced it. In this story, the new legal topic retained the most important structural attribute of its predecessor: both of them are what they are by virtue of their categorical distinction from the law of contract and, more broadly, the law of the market. This distinction did not always seem natural: this Article tells how it was invented. The resulting market/family distinction remains a latent but structural element of the legal curriculum and the legal order more generally today. This Article calls that distinction into question and suggests that “family law” should be restructured to connect it for the first time to domains of law more readily understood to relate directly to the market: economically significant productivity, social security provision, and the fair or unfair distribution of economic resources. In short, my story goes like this. In the early 19th Century, there was no family law. The law of husband and wife and the law of parent and child were separate, parallel, and closely re