Divorce All the Way Down: Local Voice and Family Law's Democratic Deficit

Abstract

Elections for local judges are parodies of democracy, and yet family court judges are tasked with making a series of value judgments in the course of exercising their broad discretion. Those idiosyncratic value judgments determine who gets custody and under what conditions. They determine who deserves more of the marital property and how much of it there is. Over the last thirty-five years, reformers have asked state legislators and appellate courts to cabin judicial discretion by imposing top-down rules that govern these issues. These reforms have uniformly failed. This Article outlines a reform strategy that is novel along two dimensions. First, it turns the attention of reformers downward, not upward. The future of family law reform is local. Second, it introduces family law reformers to a new space along the rules-standards continuum: rules of thumb. Although each of these two innovations — localism and rules of thumb — could be pursued independently, the combination yields important synergies. Empowering cities and school boards to weigh in on family law issues provides them with a new and muscular voice that can amplify the impact of communities that are excluded from existing power structures at the state level. Local influence over family law also generates much-needed policy experiments, creates new opportunities for expressive sorting, and has the potential to reinvigorate citizen engagement with local politics. Channeling this influence through local rules of thumb eliminates over and under inclusion problems and significantly mitigates fears that local politicians will be able to oppress local minorities.