Author: Brian Bix


A Parent-Partner Experiment?

Merle Weiner’s A Parent-Partner Status for American Family Law is a marvelous achievement, well worth reading for anyone interested in family law and policy, and  contemporary debates about marriage, parenthood, and child-raising.  Prof. Weiner has read seemingly everything written in recent decades on marriage and parenting, across law, psychology, sociology, and policy science, and this learning is worked seamlessly into the present book.  A Parent-Partner Status is also superb in the way that it consistently presents fairly the likely arguments against her proposals, objections Weiner then answers carefully.


The basic background for Weiner’s argument is well-summarized in the book’s early chapters:  that both legal and social changes in recent decades have changed the way we understand family obligations.  The earlier approach made marriage central to determining the obligations (or lack thereof) of adults to their children, and co-parents to one another.   In the last 40 years, the Supreme Court held illegitimacy to be a suspect class under constitutional analysis, the Uniform Parentage Act made parental obligations largely independent of the parents’ marital status, and non-marital births have become both common and widely socially accepted.


A Parent-Partner Status is best understood as advocating two distinct but related objectives:  the creation of a strong social norm of appropriate co-parenting and the creation of a legal status of “parent-partner.”  The two are related, of course, not least in the ways that laws, even when un- or under-enforced, may still have value in expressing and reinforcing society’s approval or disapproval of different practices.


Weiner’s “parent-partner” status seems well-placed as a potential general social norm, in the sense that it is grounded on some fairly widely established views, while also going beyond those existing shared views.  Starting at foundational matters:  nearly everyone would agree that one should treat (all) others with respect and consideration.  And there would likely be equally strong agreement that additional duties would apply to the co-parent of one’s child.  Additionally, the idea that one is financially tied to one’s co-parent until the child is of age is the basic idea underlying the currently well-settled law of child support obligations.  The difference between Weiner’s parent-partner status and current child support law is that the proposed co-parent obligation is (also) to the co-parent; and the differences from existing conventional social and moral thought come in the effort to articulate precisely what those duties to the co-parent are or should be, and in determining whether the government should be involved in advocating for or enforcing those duties.


Under Weiner’s analysis, parent-partners are to exhibit fondness, flexibility, acceptance, togetherness, and empathy to one another.   They are subject to a (limited) duty to aid the other parent, a duty not to abuse the other parent physically or psychologically, an obligation of “relationship work” when first becoming parents and at the ending of the parents’ romantic relationship, a heightened requirement of substantive and procedural fairness in any agreement between the co-parents that purports to waive or alter their financial obligations to one another, and a duty of compensation for unfairly disproportionate caregiving (where the fairness of the caregiving arrangement would take into account multiple factors, including financial payments by the other parent).


Weiner recognizes that legislatures might make different choices about which duties to include in a parent-partner status, and that duties might be added or subtracted later based on experience with the status.  Additionally, with the exception of the caregiver payments, Weiner generally recommends caution in the remedies courts impose.  For example, the duty to do relationship work could be enforced only by an order to attend an informational session rather than by an order to go to relationship therapy; and the duty not to abuse would involve only a modest extension of existing domestic violence statutes (to cover parent-partners from conception. and to cover parent-partners even when they are not in an existing romantic relationship).


It is the duty of payment for unfairly disproportionate caregiving, where breaches would make the parent liable to court orders to pay compensation to the caregiver, that Weiner properly predicts to be the most controversial, and also the most difficult to implement.  There are problems both in determining when a co-parent has breached the duty, and in determining the appropriate compensation.  Weiner rejects the idea of trying to establish guidelines in advance, noting the wide range of fact situations (e.g., across divorced, cohabiting, or never-having-cohabited couples).  Weiner recognizes that the alternative of wide judicial discretion may evoke bad memories of the unpredictability, uncertainty, and wide range of outcomes that occurred with child support orders before that area of law was overtaken by guidelines.  However, the book argues that there may be no option but wide judicial discretion, with some borrowing from the (multiple and overlapping) theories now supporting spousal support (alimony), but with the hope that principles, standards, presumptions, or even guidelines might be developed over time by courts or legislatures.


As a prospective legal status, it is hard to predict how successful the parent-partner status would be, because of its relative novelty.  One can speculate, of course, regarding how well it would work, and there are reasons to be cautious or concerned.  There might be resistance to what could be seen as more intrusive government intervention in personal affairs (especially where the law goes beyond preventing abuse to requiring supportive behavior), and also reasonable concern that these sorts of rules (like many other family law rules) might come to have disproportionate effects on poor and minority communities (recall how the government came to pressure poor mothers to sue their partners for paternity orders and child support, or to have the ability to sue the fathers directly to reimburse the government for benefit payments; it is easy to imagine something similar happening with compensation rights for disproportionate caregiving).


Law in general, and family law in particular, are full of experiments that did not work out as expected – sometimes better than expected, sometimes less well than expected, and sometimes just different from expected.  In this group, one could clearly include no-fault divorce, covenant marriage, and the French PACS (Pacte civil de solidarité).  As with the early recognition in a handful of states of same-sex civil unions and domestic partnerships, and eventually same-sex marriages, and the recognition in Washington State of the status of “Committed Intimate Relationships,” there are clear benefits to having new family law norms, rules and practices tried in individual states, as (to use Justice Brandeis’ famous phrasing) “a laboratory [for] novel social and economic experiments”.  Weiner’s “parent-partner” status is clearly promising enough to be worth a state experiment, or two or three or four, and then we can get a better sense of whether it can be structured in a way that allows its benefits to outweigh any costs.



“Normative Jurisprudence” and What Law Professors Should Do

(First,by way of full disclosure:  I am one of the co-editors (along with William Edmundson) of the Cambridge University Press Series in which Robin’s book appears.  Connected with that role, I had a small part to play in asking Robin to write the book for the Series, and in offering comments on the text prior to publication.)

Normative Jurisprudence surveys three prominent approaches within legal theory:  natural law theory, legal positivism, and critical schools of jurisprudence (including American legal realism, feminist legal theory, and critical legal studies). Robin argues that these approaches all, at one time or another, have argued for, and offered philosophical grounds for, significant social change, but that they have all fallen away from that proper path.  She holds up as examples of what theorists should do, Jeremy Bentham, who combined important work on abstract moral theory with crusading writing seeking legal and political reform, the American legal realists, whose jurisprudential work was combined with an agenda for legal and political change that they helped to realize in the New Deal, and John Finnis, whose modern work on Natural Law theory (e.g., Natural Law and Natural Rights (Oxford, 1980)) focuses on the importance of the common good, and a detailed argument about what it requires.  To these role models, Robin contrasts the dry debates in analytical legal philosophy (mea culpa!), the cryptic postmodern writings of modern Left theorists (here Robin joins Martha Nussbaum and Terry Eagleton in suggesting that postmodern theorists have done more to undermine social reform than to support or motivate it), and the thin views of the common good in the secular and process-focused natural law theories of Ronald Dworkin and Lon Fuller

I  think Normative Jurisprudence is a marvelous and important book.  Like most books of its stature, it raises significant questions for further discussion.  The one I will focus on relates to specialization and expertise in the legal academy.

One can take it as a given that individuals should work for social justice, and that this is true (other things being equal) whatever one’s training, career, or position.  The question is whether there is something special about academics, legal academics, theorists, or legal theorists, such that we should expect more from them, perhaps because they have special relevant expertise. (Most of the writers for and readers of Concurring Opinions are law professors; perhaps we could begin by asking ourselves what special role we think we have (individually, or collectively as law professors) in relation to matters of policy and justice.)

Speaking as someone who writes in legal theory, but who has never played a prominent role in social reform, I feel a need to respond to Robin’s critique.   I would argue that what most analytical theorists do best is analysis, and they (we) have no special expertise relating to advocating for social change.  I do not think that analytical work should only be done if it can be in the service of fighting injustice (though when it can serve that cause, all the better).  Similarly, critical theorists may have brilliant things to add to the discussions of the social construction of ideas and practices, and perhaps should offer those ideas even if they have little effect on the movement towards social justice (and even potentially a slight negative effect).

I see little reason to think that law professors (qua law professors) have any special insights about what the best society or most just world looks like, or what the best way is to get us there.  Law professors may have some expertise on the distinctive benefits and problems of legal reform:  what has tended to work well and less well in attempting reform through the law, the unintended consequences that can follow from trying to change behavior through legal rules, and so on.  However, this is a limited (if still important) piece of the large and complex social justice puzzle.

There have of course always been law professors who were also great figures in legal and social reform and significant public intellectuals (Catharine MacKinnon is one obvious name that comes to mind).  However, most of us continue to chip away on a smaller scale on matters closer to our training:  doctrinal scholars do doctrine, and theoreticians do theory of various kinds — perhaps showing that conceptual analysis is inappropriate to determining the nature of law, proving the incoherence of legal normativity, explaining the true strengths and limits of analogical reasoning within law, and so on.

I join Robin in celebrating those people who have been able to construct theories that have played key roles in legal and social reform, and I join her also in encouraging those among current academics who have the potential to be the next Bentham or MacKinnon to work towards that goal.   However, I remain doubtful that law professors are generally, by their nature or usual skill set, those best placed to be at the forefront of reform movements.