Wild Flowers in the Swamp: Local Rules and Family Law

Abstract

Family law reform is stuck in a rut. Reformers have criticized family law’s open-ended standards for decades and have uniformly sought to make those standards more rule-like by imposing top-down rules to cabin trial court judges’ discretion. That reform strategy failed 35 years ago, it failed 25 years ago, it failed 15 years ago, and it will fail today. This Article explores a bottom-up solution. Just as local judges routinely adopt local procedural rules, they should also be empowered to adopt substantive rules of thumb to guide their individual discretion in family law matters. This reform can accomplish what reformers have long failed to achieve: to cabin the discretion of individual judges and to bolster the democratic legitimacy of their decisions. Collective rules of thumb also create two novel dialogic benefits. They provide the first clear opportunity for local citizens to communicate to local judges about the content of local values. This is especially important when mostly heterosexual, white, wealthy judges are increasingly out of touch with minority family forms. In addition to giving a voice to local citizens, collective rules of thumb provide judges with a powerful new signaling device to communicate with appellate courts and legislatures. Whatever judges may say, they speak with much more force when they speak as a group. The vision of local power that this Article defends has implications that extend far beyond family law as well. Most notably, its novel focus on rules of thumb forces revisions to existing accounts of “rules against rulification,” and its account of citizen–judge dialogue offers insights into recent theoretical work on the proper scope of local judicial power.