Reply to Blumberg: [Commentary

Abstract

I have difficulty recognizing the book I wrote in reading Professor Blumberg's review.' She asserts that I pursue three themes. The first is an interpretation of the process of statutory change in divorce law, which is indeed what I set out to do. Second, she alleges that it [n]ecessarily ... is also a legal history (p. 116); that was not my intention, and some of the shortcomings she points to I concede because I did not seek to produce an account of changes in case law or the practice of law. Third, she writes, a leitmotif, it [the book] keens a worried lament for the endangered traditional family. The words are nice hyperbole, but they are wrong. There is no such recurring theme; I do not mourn threats to conventional family structures in this book or in any of my other writings. I do not express a belief that something went wrong and do not villainize those who enacted the changes. A fundamental misunderstanding underlies Blumberg's review. The leitmotif of the book is that the promoters of changes in divorce legislation consciously or unconsciously pursued a strategy of routine lawmaking in contrast to a conflictual model. I do not ascribe illegitimate motives to those who pursue such a strategy. I describe the strategy (at 12) as involving eight related tactics. It seeks to narrow the definition of the problem rather than broadening it and attempts to narrow rather than broaden participation by interest groups. It heightens the influence of experts rather than that of nonexperts and emphasizes the compatibility of the proposed solution with existing policies rather than emphasizing its innovative qualities. It seeks to portray the proposed policy as involving low risk and little uncertainty and asserts that the fiscal costs will be minimal. It portrays the proposed policy as being within the range of legitimate gov-