Sunday, August 13, 2023
Katharine K. Baker (Chicago-Kent College of Law- Illinois Institute of Technology) recently published an Article titled, Where Do Families Come From? The Law of Family Definition, BYU Law Review (2023). Provided below is the Abstract:
Contemporary family law scholarship is full of discussions imploring the law to re-think who should count as family. There is much less discussion of why the law needs to recognize families. This article dives into an analysis of why the state recognizes families in order to explain that who should count as family depends on why the state is recognizing family. Sometimes family recognition stems from a policy of fostering unique cooperative communities in which neither market nor other neoliberal norms determine rights and obligations. Communities like this are particularly good at taking care of dependents, but they also enable individual self-determination and a diverse, democratic society. At other times, family recognition serves a forced sharing function; it identifies who should be forced to share as family members are supposed to. At still other times, the law uses family recognition to make assumptions about who is most likely to get resources to an intended beneficiary and who is most likely to be the intended recipient of private wealth. This use of family for assumptive purposes helps distribute both public and private resources appropriately. Neither the Supreme Court nor state lawmakers acknowledge these distinct reasons for recognizing families, even as they mandate different ways of defining family in different contexts. Yet different means of determining who should count as family may be more or less appropriate depending on the reasons for recognizing families. Only after ascertaining why the law is recognizing family can courts and legislatures responsibly determine who should count as family. Thus, contrary to what the Supreme Court has said, whether a statute or program “slices into” or “infringes on” the definition of family is not an important question. All legislation that impacts families does that. The important question – and the one addressed comprehensively in this article – is whether a particular definition of family is appropriate in light of the particular governmental purpose served by family in that instance.
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