Janet Halley


What is the place of the family in legal scholarship and teaching, and in deep, implicit ideas about how our legal order is arranged? How did it get to be that way? Published in two separate Parts, this Article tells a story of American family law: how the law of Domestic Relations emerged as a distinct legal topic in late-nineteenth-century legal treatises, and what ideological conditions facilitated its renaming and reconstruction as Family Law in the Family Courts and casebooks of the twentieth century. Almost without exception, throughout this account Domestic Relations/Family Law 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.

My story comes in three time periods, corresponding with Duncan Kennedy's three globalizations of legal thought. The first is the classical era, roughly the last half of the nineteenth century. The second is the era of "the social" - characterized by the sociological jurisprudes' and legal realists' attack on the classical legal order and restructuring of legal taxonomy-spanning roughly the first half of the twentieth century. And the last is the era of conflicting considerations, roughly the last half of the twentieth century.