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First, many thanks to Dan, who originally convened this group to discuss Privilege or Punish at last summer?s SEALS Conference.  I congratulate Jennifer, Ethan, and Dan on their work, and thank them for its many contributions.  And thanks, too, to the folks here at Prawfs for giving us a forum in which to continue our conversation.



As a family law teacher and scholar, I found it edifying and revealing to consider many of the issues we wrestle with in family law through the lens of the criminal law, as explored in the book.  I was especially intrigued by the book?s analysis of ?family ties burdens,? (criminal laws punishing things like failure to rescue a spouse, failure to pay child support, bigamy, adultery, and incest) many of which I teach in my survey family law class.  And I found myself largely agreeing with the authors? conclusions as to whether and how the criminal law should regulate these behaviors. 



My critique, however, relates to how the authors arrive at their conclusions. 

Central to the book?s analysis of the desirability and legitimacy of these burdens is a consideration of whether there are other means of vindicating the state goals driving them.  And here, the book leaves a rich source of analysis largely untapped.  The book does little to canvass the existing panoply of civil family law that regulates this conduct, and thus misses the opportunity to consider civil family law as another equal or better way to serve the government objectives underlying family ties burdens.  As a result, the book also misses the opportunity to learn other lessons from civil family law, which in some instances expresses parallel concerns or otherwise maps nicely onto the concerns and conclusions at which the authors arrive.  My project here is to supplement the book?s analysis with a few examples of civil family law?s role, and then to step back and pose a few of the larger theoretical questions that are implicated.



For many of the behaviors regulated as family ties burdens, civil law also provides a robust system of regulation that might obviate, or at least mitigate, the need for criminal sanction.  I?ll give three examples here.  First, the state regulates the entry into marriage, and substantive marriage requirements provide that bigamous marriages and incestuous marriages are void.  These prohibitions serve an expressive function, and deny the significant benefits of marriage to bigamous and incestuous partners.  Second, the law of fault-based divorce can act as a disincentive, or punishment, for things like failure to rescue, bigamy, and adultery.  Fewer than 20 states and the District of Columbia have abandoned fault altogether; it remains an option at divorce in the majority of states.  Here, the spouse herself has a remedy against a partner who fails to rescue her (cruelty), cheats on her, or purports to marry another (adultery).  A finding of fault can significantly affect property division, alimony, and child custody at divorce.  And even in the context of a marriage void for bigamy, an innocent spouse might be entitled to divorce-like remedies under the Putative Spouse Doctrine.  Third, the civil law of child support provides a number of mechanisms to ensure compliance with support orders.  Parties can pursue private enforcement through litigation, and family court judges can issue seek-work orders for malingering parents, impute income when parents are un- or underemployed, and punish noncompliant parents with civil contempt.  And the states are experimenting with a number of other innovative methods to boost compliance ? things like ?most wanted? lists and ?booting? cars (pink for girls; blue for boys).  As these examples suggest, civil family law can provide a significant avenue to discourage many behaviors targeted by the criminal law?s family ties burdens.



Of course, once we recognize that civil family law could potentially do much of the heavy lifting here, the inevitable question arises:  Is civil law or criminal law better suited to vindicate the government interests motivating these family ties burdens? And here, the meta-level issue of whether regulation of the family is the proper province of the criminal law is somewhat underexplored. 



The first question, of course, is what goals the criminal justice system should seek to vindicate in this context. Some of the goals identified by the authors are:  affirming the significance of marital obligations, reinforcing vows of loyalty, imposing an ethos of caregiving relations, and encouraging voluntary caregiving. The obvious question is whether criminal regulation is the proper vehicle for vindicating these interests and the harms they can help avoid.  But I?m not quite as sanguine about the state?s motivations in the first place.  Criminal sanction serves another goal identified by the authors in addition to protecting against harm:  giving voice to disgust and moral/religious opposition.  The criminal sanction serves an expressive function ? setting out a normative, default model of the proper constitution of families, and proper behavior within them.  Deviation from that standard is criminalized and punished.  Put another way, when we look at the targeted behaviors in the aggregate, they define family deviance and set apart the ?model? family in relief. 



Is there something different about using the criminal law to express these norms?  As other reviewers of the book have noted, criminal law can result in restraints on liberty, and it?s a markedly moralized state practice.  For these reasons, I?d like to suggest that we might be more comfortable with the educative and expressive functions of the civil family law, as well as the other instrumental functions it serves.



Why might civil family law be preferable?  Civil family law in some instance will have less dramatic moralized effects, but still serve an expressive function.  Family law remedies may have a more public, condemnatory quality than simply enforcing a contract, so perhaps their expressive function falls somewhere in between the spectrum of criminal law on one end, and private ordering on the other.  There will be fewer restrictions on liberty, but civil regulations can be an effective check against undesirable behavior and encourage better outcomes.  More resources and education are available civilly.  And importantly, civil family law can better address concerning issues of voluntariness and agency raised by criminal sanction.  In the context of consensual adult relationships, family members themselves are free to decide whether they want to tolerate or ?punish? (through divorce, e.g.) certain behaviors.  Fault-based divorce, for example, is an ?opt-in? remedy similar to the private ordering and registries advocated by the authors.  By contrast, criminal law sanctions render the voluntary vows and promises of marriage mandatory.  Ultimately, civil family law can offer more varied and nuanced approaches to particular behaviors than can the criminal law ? more scalpels and fewer sledgehammers.  We might therefore find that the benefits of civil family law lead us to prefer it as a mechanism to pursue state interests that might otherwise be vindicated by family ties burdens.  (Although we might also question the propriety of civil law?s regulation of consensual adult relationships.)



Family law scholars often grapple with an existential question:  What is family law, exactly ? a separate doctrinal category, or a type of case that runs through number of other categories of law?  The casebook I use, for example, surveys almost all of the privileges and burdens identified in Privilege or Punish, as well as exploring issues in tax law, social security law, bankruptcy, trusts and estates, etc.  Are the family ties privileges and burdens of Privilege or Punish best thought of as criminal law, family law, or some sort of hybrid?  My instinct is that it?s probably the latter.  We can see from this project, for example, both the benefits and limitations of viewing these regulations through the lens of the criminal law, in relative isolation.  My aim here has been to supplement the authors? analysis and conclusions from the broader perspective of family law.  Situating family ties burdens within the larger state apparatus regulating families yields, I think, a richer and more complete analysis.

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