Excerpted From: Jessica Dixon Weaver, Racial Myopia in [Family] Law, 132 Yale Law Journal Forum 1086 (April 30, 2023) (159 Footnotes) (Full Document)


JessicaDixonWeaverFamily Law for the One-Hundred-Year Life sets forth a bold new structure that allows families to opt in or out of the rights and obligations provided by normative legal frameworks focused on traditional marriage and caretaking roles within families. The Article contends that a lack of insight related to aging-- “age myopia” family law fails older adults, preventing them from legally arranging emotional and financial ties to other adults beyond their immediate family network. Professors Naomi Cahn, Clare Huntington, and Elizabeth Scott's proposal focuses on customizing family relationships for the growing number of elders who will be living significantly longer lives with multiple life partners, adult relatives, and friends. The Article posits that family law must reflect three core commitments: (1) centering the autonomy interests of older persons; (2) addressing structural inequities; and (3) ensuring that legal mechanisms are efficient and accessible. Undoubtedly, the broad goals of the Article are worthy, but this Response stresses that these goals must be more incisive and inclusive. Structural inequities within family law run deep, and the Article fails to meaningfully grapple with them. The project of Family Law for the One-Hundred-Year Life is fundamentally incomplete--and possibly misguided in the reforms it advocates--without a more comprehensive reckoning with racial myopia in family law.

Racial myopia in law is complex because it manifests in many ways. Unpeeling the layers requires a breakdown of the foundational touchstones of law, including pedagogy, scholarship, practice, state and federal legislation, and the judiciary. The scope of this Response will focus in particular on two combinations of the aforementioned touchstones--pedagogy and scholarship, and legal practice and the judiciary. The importance of recognizing how these four pillars of law influence policy reforms and individual behavior cannot be overstated. For family law, the stakes are high. These four pillars often dictate how state and federal family laws are developed, as well as on whom they focus. The family code and other “living-room laws” govern the mode of operation for where and how people live, who provides caregiving for family members, and who is fiscally responsible for dependents within a family. When academic teaching and scholarship are inclusive and diverse, the chances for meaningful reform are greater because those entering law practice, as well as those writing restatements and uniform codes, will be more likely to suggest changes that consider the legal history and interrelationship of the law with various citizens of different racial backgrounds. For practicing lawyers and judges who handle family law cases daily, inclusive and diverse training can help make their legal advocacy and decision-making better informed and more equitable. However, when the normative default is whiteness, change remains elusive because the purpose of the law is not properly designed to help provide equal access to justice or ensure due process for marginalized groups of people. Furthermore, racial inclusivity is a culmination of both the recognition of systemic racial differences and the utilization of an informed lens to analyze current law and possible solutions to legal problems.

This Response proceeds in three parts. Part I addresses general racial myopia in law. Family law is only one example of the narrow focus of law in prescribing how the majority of American people live their lives. Racial myopia exists in fields ranging from tax law to property law. This Part sets forth the background regarding the creation and operation of law, particularly within the legal academy. Part II addresses structural inequities in family law specifically. It argues that Family Law for the One-Hundred-Year Life presents an opportunity to grapple with the persistence of racial myopia and the need to propose reforms that incorporate the lived experience of families of various racial backgrounds. It takes issue with the standard white family framework used to teach family law and emphasizes the need for inclusive scholarship among well-meaning scholars in the field. Part II also explores the practical aspects of considering race as it pertains to the legal representation of family law clients and their treatment in court. It provides examples of how research on the use of forms by pro se litigants in family law can assist legal scholars and legislators in expanding due process and access to courts for all families.

Part III considers how the Article's failure to deal with structural racial inequities in law results in the inability of its proposed changes to meet the authors' first and third core commitments. Centering the autonomy interests of all older persons requires consideration of the interests of a wide variety of older persons. While the Article proposes some federal legal changes that could provide better economic stability and caregiving support for older persons of different class and racial backgrounds, it acknowledges that most of these suggestions are unlikely to become law and take effect. The Article's proposed family registration system, which states may be more likely to adopt, does not consider the difficulties faced by some minorities and poor families when they use pro se forms in court, nor does it address how laws and government benefits that are contingent upon marriage should change. Because the proposed registration system does not consider the implications of other extant laws, working-class, poor, and minority families may be disincentivized from utilizing the family registration system. Part III concludes with suggestions for the legal academy to wrestle with racial myopia and the academy's role in shaping the law.

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This Response challenges whether Family Law for the New Old Age actually addresses the structural inequities it claims as a core commitment. Racial myopia in family law is at the center of the critique. Structural inequities cannot be addressed by using white families as the normative identity for analyzing legal reforms of the aging population. The practical reforms set forth in the Article could have unintended consequences for the families that already face obstacles in family court and within the wider legal system. Race--as well as the scholarship that incorporates race into normative family structure and identity--must be critically considered as we propose new ways of creating family units. This Response calls for active engagement with the racial history surrounding American family structure and the laws utilized to support them in order to achieve the goal of adapting family law to address the needs and interests of older people.

Associate Dean for Research and Professor, SMU Dedman School of Law.