Family law scholarship is thriving, with scholars using varied methodologies to analyze intimate partner violence, cohabitation, child maltreatment, juvenile misconduct, and child custody, to name but a few areas of study. Despite the richness of this discourse, however, most family law scholars ignore a key tool deployed in virtually every other legal-academic domain: institutional analysis.
This methodology, which plays a foundational role in legal scholarship, focuses on four basic questions. Scholars often begin empirically, identifying the specific legal, social, and economic institutions that shape an area of legal regulation. Beyond descriptive accounts, scholars analyze how authority is and should be allocated across institutions – what is called institutional choice. Scholars similarly consider questions of institutional design, exploring how a specific institution operates and asking whether the institution could be more efficient and effective. Finally, scholars evaluate institutional frictions, anticipating the institutions that are likely to advance or impede law reform.
For nearly every contemporary issue in family law, a descriptive account of relevant institutions and an analysis of institutional choice, institutional design, and institutional friction would add critical – and missing – elements to current debates. To demonstrate the value of this methodology, this Article frames the relevance of these four dimensions of institutionalism and begins the process of applying that frame to specific controversies at the heart of contemporary family law. The resulting insights across a range of doctrinal, theoretical, and policy debates are deeply relevant to scholars, lawmakers, and policymakers. In short, it is long overdue for family law scholars to join the ranks of institutionalists, and this Article charts the path for doing so.
Huntington, Clare, The Institutions of Family Law (March 4, 2022). Boston University Law Review, volume 102, no 393, 2022, Fordham Law Legal Studies Research Paper No 4049831.