Back to the Future: The Perils and Promise of a Backward Looking Jurisprudence

Abstract

The ALI Principles of Family Dissolution delight in the existential uncertainty of arrangements whose legal consequences cannot be fixed until the point at which a relationship dissolves. They strive to suspend judgment, moral and practical, long enough to create a private space for the creation of relationships free from the historical weight of family regulation. When families break down, however, the Principles do not hesitate to intervene, to secure protection of the vulnerable and to provide a foundation for family members to continue on the basis of what has come before. This paper critiques the ALI's "backward looking" jurisprudence, arguing that it is backward looking in three respects: 1) it literally looks backward toward the parties' circumstances over the course of their relationship to determine the consequences of dissolution; 2) it adopts an explicitly ex post rather than an ex ante perspective, focusing on the "costs of dissolution" rather than the terms of engagement; and 3) it is more determined to reject historical approaches to family governance than to articulate a new regime. The paper concludes that while the ALI approach may succeed as part of a family law of transition, to succeed more permanently in forging a new basis for family obligation will require making the terms of commitment clear at the beginning, and not just the end, of relationships.