Family law has traditionally been treated as an exceptional field, a marginalized and special case in which the usual rules of the legal canon do not apply. This Article argues that the current challenge to family-law exceptionalism has been largely one way, to the detriment of a central concern of family law: the protection of children and of the parent-child relationship. Family-law scholars have focused primarily on whether and how to import the tools and insights of other areas of law into the zone of family relations, while largely overlooking the possibility that the tools and insights of family law might instead be exported outward, into the rest of the legal canon. In the process, family-law scholars have contributed to an already existing blind spot regarding the extent to which the conditions of child rearing are affected, often profoundly, by jurisprudence that we do not think of as involving family relations, but that affects the conditions of children's development by affecting their parents or caretakers. This Article considers how family law's perspective on children's interests might be exported into areas of law that affect children indirectly. The Article investigates two paradigmatic fields in which children's interests may be affected by cases involving their parents: criminal law and contracts. By using the perspective of family law to examine the relevance of children's interests to criminal law and contracts, the Article shows how taking children's interests into account in cases involving their parents can further the internal consistency and legitimacy of each field. The Article builds upon this rationale to formulate a model for assessing when and how it is appropriate for courts to factor children's interests into their decision making in cases that involve children only indirectly.
Contracts | Criminal Law | Family Law | Law
Sarah Abramowicz, Beyond Family Law, 63 Case W. Res. L. Rev. 293 (2012).