Person:

Halley, Janet

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.

This Article offers a genealogy of domestic relations law (later renamed family law). It comes in two Parts. Part I is an account of how it emerged as a distinct field in American law in the latter half of the nineteenth century. This Part, Part II, is an account of its successive transformations over the course of the twentieth century. I argue that domestic relations/family law did not always exist; rather, it was invented, and the ideological implications of that act of creation remain embedded in the field today. The central idea which, I argue, recurrently characterizes the field is that the family and its law are the opposites of the market and its law. Born in the middle of the nineteenth century as the notorious status/contract distinction, it has shown amazing powers of resilience, surviving three highly intentional and collectively organized attacks and gathering to itself new ideological and practical implications as the presuppositions about law that permeate legal consciousness have changed and changed again over time.

This Article offers a genealogy of domestic relations law (later renamed family law). It comes in two Parts. Part I is an account of how it emerged as a distinct field in American law in the latter half of the nineteenth century. This Part, Part II, is an account of its successive transformations over the course of the twentieth century. I argue that domestic relations/family law did not always exist; rather, it was invented, and the ideological implications of that act of creation remain embedded in the field today. The central idea which, I argue, recurrently characterizes the field is that the family and its law are the opposites of the market and its law. Born in the middle of the nineteenth century as the notorious status/contract distinction, it has shown amazing powers of resilience, surviving three highly intentional and collectively organized attacks and gathering to itself new ideological and practical implications as the presuppositions about law that permeate legal consciousness have changed and changed again over time.

Four feminist law professors at Harvard Law School have called on the U.S. Department of Education to revise the previous Administration’s policies on sexual harassment and sexual assault on campus. In a memo submitted to the Education Department yesterday, they set out an agenda of fairness for all students, accusers and accused. In recent years the Education Department has pressured colleges and universities to adopt overbroad definitions of wrongdoing that are unfair to both men and women, and to set up procedures for handling complaints that are deeply skewed against the accused and also unfair to accusers. Janet Halley and Jeannie Suk Gersen, Elizabeth Bartholet, and Nancy Gertner are professors at Harvard Law School who have researched, taught, and written on Title IX, sexual harassment, sexual assault, and feminist legal reform. They were four of the signatories to the statement of twenty-eight Harvard Law School professors, published in the Boston Globe on October 15, 2014, that criticized Harvard University’s newly adopted sexual harassment policy as “overwhelmingly stacked against the accused” and “in no way required by Title IX law or regulation.” Janet Halley said “The college process needs legitimacy to fully address campus sexual assault. Now is the time to build in respect for fairness and due process, academic freedom, and sexual autonomy.” The professors submitted to the Education Department a memorandum entitled “Fairness for All Students under Title IX.”