Monday, October 27, 2014

The Politics of Family Law Reform -- Getting from Here to There

Guest Blogger

Elizabeth Scott
For the book symposium on Clare Huntington, Failure to Flourish: How Law Undermines Family Relationships (Oxford University Press, 2014)

Many scholars and advocates have argued that American law does little to support families, and that our society would benefit greatly from reforms that aim to assist parents in raising their children to become healthy and productive adults. What Clare Huntington has done in her wonderful book, Failure to Flourish, is to describe in remarkable detail the ways in which the law undermines families across a range of policy domains—and then to offer a comprehensive reform agenda for strengthening positive family relationships.  Her proposals range from the surprising (highway design) to the more predictable (early childhood education, child care programs and custody law reform). In combination, they provide a blueprint for a policy regime that would go far to correct the legal deficiencies that cause harm to families across the socio-economic spectrum, but particularly to poor families. The book is meticulously researched and her arguments are supported by sound social science evidence and particularly by outcome research on a broad range of programs. Huntington is persuasive (to me at least); I have little doubt that, if lawmakers were to embrace her regulatory vision, substantial benefits would follow for American families, and social welfare  would be enhanced greatly.  The book provides an extraordinary guide to assist family advocates in the pursuit of law reform.

Some of the changes Huntington proposes seem well within reach—indeed, some have already been adopted in large part. It is an extraordinary sign of the times that her argument that the law should recognize same sex couples as families actually seems a bit dated, given the marriage equality movements momentum recently. Further, as she points out, reforms toward more cooperative dispute resolution processes for divorcing couples are not likely to meet political resistance. But the implementation of essential features of Huntington’s vision will require redistribution of resources to poor families, which will likely generate opposition among conservatives and libertarians.  Moreover, as Huntington points out, libertarian principles deeply influence American family law.  Thus, in contrast to more communitarian European countries, the American government has no legal obligation to provide support to families. To be sure, family autonomy is a myth to an extent: As Huntington argues, the state is already involved in family life, and many government programs and policies, such as Social Security and public education, benefit middle and upper class families. But this point is unlikely to move conservative skeptics whose response will be that these families pay taxes and have earned the benefits they receive.

The upshot, as Huntington acknowledges, is that daunting challenges face law reformers aiming to implement a legal regime that supports family relationships across the socio-economic spectrum. But, despite the current polarized political environment, there is reason to believe that progress is possible.  Most Americans are not libertarian or even deeply conservative, and the optimist in me believes that effective advocacy can result in the adoption of at least some of Huntington’s proposed reforms.

Americans do tend to be pragmatic and to discount future costs and benefits; many people are inclined to focus on predictable short term costs and benefits in evaluating government policies. Thus, programs that aim to effectively combat tangible social harms will probably fare better in the political arena than those that target more diffuse harms or that offer remote and uncertain payoffs. For example, a program that seeks to encourage teenagers to postpone childbearing through contraceptive and counseling services may be an easier sell than one that seeks to encourage unmarried fathers to co-parent children born into fragile relationships. To be sure, many children likely would be better off if these fathers were to stay involved in their lives in a positive way, but policies and programs encouraging this involvement are likely to be costly, and the benefits may seem remote or improbable. From a strategic perspective, reform proponents are most likely to succeed if they can make salient the social harm of failing to intervene to assist families through the proposed program or policy—and the benefits the program will bring.

Juvenile justice policy is not explicitly aimed at supporting families (although it is aimed at promoting youth welfare), but the reforms of the past decade offer lessons about how social programs can gain traction in the political arena. Policies shifting resources from correctional institutions to community-based programs have gained broad support, in part because crime reduction is such a salient social goal, and community correctional programs have been shown to reduce juvenile offending more effectively and at a lower cost than long term incarceration. Evidence from psychological and brain science underscores the critical importance of correctional environment during adolescence, providing a persuasive rationale for the effectiveness of the movement away from incarceration. To be sure, some conservatives rail at the reforms, but across the political spectrum, there is widespread support for policies that once were endorsed mostly by liberal activists. 

Another strategy for implementing some family support programs is to avoid means testing if possible. Of course, poor families need more support than middle class or wealthy families, and, in a world of scarce resources, means-testing will often be necessary as a prerequisite to program participation.  But, as Sara McLanahan and Irwin Garfinkel (whose Fragile Families study is discussed at length by Huntington) have argued, programs and policies that benefit all families are more likely to gain and maintain public support than those aimed only at poor families. Public education is probably the most expensive social program, but it enjoys strong political support because children across the socio-economic spectrum attend public schools and their families enjoy the benefits.  Similarly, the Individuals with Disabilities Education Act (IDEA), which mandates special education services for disabled students, is politically popular; scholars agree that this can be explained in part by the fact that IDEA benefits middle class children, whose parents represent a powerful political force. Advocates for programs supporting families should think long and hard about whether the benefits, in some way, can be extended to all families.

Programs and policies that offer promise but with uncertain benefits can be incubated through small local and state initiatives; this provides a means for improving design and gaining information about effective approaches, as part of a process for gaining broader political support. States and regions vary in their willingness to invest in new programs and policies that benefit children and families. Through the efforts of advocates, successful initiatives may then be adopted by more risk-averse jurisdictions. Again, evidence-based juvenile justice programs provide an exemplar; most successful programs, now adopted across the country, began as small local efforts.  Enthusiasm among lawmakers has increased over time as data on recidivism reduction and cost effectiveness have accumulated.

American law and policy likely will never support family relationships to the extent that Huntington envisions. But there is some reason to believe that Americans (and American politicians) can learn to appreciate, to a far greater extent than is currently the case, the harm to children, families and the rest of society, of leaving families to their own devices. Huntington’s book teaches this lesson, and offers a way forward toward a society that facilitates family flourishing. 

Professor Elizabeth Scott teaches at Columbia University School of Law and may be reached at

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