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Family Law's Doctrines

The father of the American law school, Christopher Columbus Langdell, famously conceptualized the law as akin to science. On this account, legal doctrine was a series of scientific truths that judges systematically revealed over time. Decades later, the Legal Realists took issue with Langdell’s rigid conception of legal development. In their view, law was not simply a set of formal doctrines that was applied neutrally. Instead, the Legal Realists argued that real world concerns—including politics—informed the application and evolution of legal doctrine. Judges thus were not scientists, faithfully applying doctrine in an evenhanded way, but rather keen political actors who could—and did—manipulate doctrine to achieve desired outcomes.

Today, almost 150 years after Langdell elevated legal doctrine to the status of scientific truth, this Symposium questions whether doctrine survives in the present day, or if it has been completely subordinated to the exigencies of contemporary situations, as the Legal Realists claimed. I approach these questions from the domain of family law, where the circumstances that animate case law are often deeply idiosyncratic and particularized. As Leo Tolstoy observed (in a nonlegal context), “Happy families are all alike; every unhappy family is unhappy in its own way.”

Despite the idiosyncratic nature of families and family life, most family law scholars and practitioners would agree that there is a robust body of family law doctrine, as evidenced by the work of federal and state courts and the many efforts to codify various family law principles into statutes. While this growing body of state and federal law plays an important role in the adjudication and resolution of familial disputes, it is not the only source of family law doctrine.

In this Article, I offer a more nuanced view of the field and the role of doctrine in it. Although there is a robust body of family law doctrine, including judge‐made case law, various state family law codes, federal statutory law, and federal constitutional law, as well as the model codes that often inspire law reform, the legal rules that these forms enshrine often assume and privilege a particular family model—marriage and the biological family produced in marriage. When families depart from the marital and biological model on which these doctrines rest, the assurances and predictability of legal doctrine evaporate. In these circumstances, the question of doctrine—of legal truths—becomes deeply contested as courts confront scenarios that require them to grapple with the fraught question of how to apply doctrine in light of real world concerns and the particular circumstances of litigants’ lives.