For the book symposium on Clare Huntington, Failure to Flourish: How Law Undermines Family Relationships (Oxford University Press, 2014)
Thanks
so much to Linda McClain for organizing this symposium and Jack Balkin for
hosting it. I am delighted to engage in a week-long conversation about family
law, which is, as I argue in my book, an under-appreciated factor contributing
to inequality in the United States.
Elizabeth
Scott has provided a terrific start to the symposium, raising a host of
important issues. Scott has already given a brief overview of the central
argument of the book—that families are essential to human flourishing but that
too often family law undermines family relationships—so I will jump right into
her arguments. Scott contends that although the U.S. should adopt my proposals,
it is unlikely that the country will do so, at least to the extent I recommend.
Scott identifies both political and pragmatic reasons for resistance. She notes
the unwillingness to re-think the current distribution of wealth as well as a preference
for programs that focus on tangible harms and produce positive outcomes in the
near-term rather than programs that focus on diffuse harms and have either a
remote or unclear payoff. She thus distinguishes teen pregnancy prevention
programs (more likely to win support) from efforts to encourage co-parenting by
low-income, unmarried fathers (more likely to face opposition). I agree with this
view as a predictive matter, but much of what I call for in the book, even those
programs that might seem to address diffuse harms with remote payoffs, can be
re-framed in the way Scott suggests.
Consider my focus on childhood development from birth to age three. As overwhelming research has established—from the Adverse Childhood Experiences Study
My
proffered solution of improving family functioning could be understood as an
effort with a remote or uncertain payoff, but here, again, it is possible to
frame the intervention in the terms Scott proposes. Part of the answer is
framing the intervention as an indispensable part of the solution. Some
scholars prefer programs that provide benefits directly to children. Economist
Janet Currie, for example, argues that it is more effective social welfare
policy to supply children with in-kind benefits, such as food, medical care,
and housing, than to pursue programs that try to change parental behavior and
thus influence children indirectly. (The Invisible Safety Net, p. 8, although I note that she was talking about the uncertain benefits of cash
welfare programs that encourage parents to work and not other parenting
programs more broadly). In-kind benefits are vital, but they address only part
of the problem. It is essential to improve the quality of the parent-child
relationship as well, even if the benefit cannot be measured in calories
provided, vaccinations administered, and housing units newly available. This
orientation thus requires a more nuanced understanding of the role of
relationships in child development and the irreplaceable role played by
families. Nuance may not be a strong suit in American politics, but the benefit
from strong families is anything but uncertain.
It
is also important to remember, as Scott notes, that many efforts at immediate
help—which can come across as appeals to increase the social safety net—can
face political headwinds as well. By contrast, attempts to improve family
functioning may appeal across partisan lines in ways that such increased
support likely would not. Tax and transfer programs are an essential component
of the safety net, but the American public is not going to invest substantially
more money in these programs anytime soon. I agree with Scott that universal
programs are more likely to win widespread support, but Scott acknowledges that
it is difficult to find the funding for such programs in the current economic
climate. A focus on family functioning presents an opportunity to “talk
purple,” across “red” and “blue” political lines, as I suggest in the last
chapter of my book. There may be a fortuitous alignment between advocates on
the left, who see the connection between families and inequality, and advocates
on the right, who want to address family breakdown.
Of
course there is risk in this, too. In the family law context, explicit
efforts to change the behavior of family members are often intrusive,
judgmental programs that denigrate and marginalize low-income families and
especially families of color. From sterilization efforts that continued well
into the twentieth century to the modern day child welfare system, when the
state seeks to change behaviors in families, too often this means pathologizing
the family behavior of some families. This is a constant concern and we must
remain vigilant about it, while also recognizing the need for additional state
support. But with that caveat clearly in mind, I remain hopeful that
strengthening families can appeal broadly.
In sum, Scott’s insights offer a roadmap for re-framing the
kinds of programs that address family functioning. I am more than open to this
re-framing because what I really care about is the substance—improving family
relationships so that children can flourish.
Clare
Huntington, Professor of Law, Fordham Law School. Professor Huntington may be reached at chuntingtonatlaw.fordham.edu