abstract. Family law is full of hard decisions. One of the most difficult—and most fundamental—concerns whether courts should remain committed to generally applicable rules of law even when they lead to normatively ugly results. Applying Hayek’s theory of law and liberty to contemporary American family law, this Essay concludes that—despite the risk of perverse results in the short term—family lawyers faced with this decision would benefit from greater attention to the Hayekian values of predictability, adaptation, and equal application. By illuminating the structural costs posed by normatively satisfying particular judgments, Hayek’s framework offers a powerful tool for future distributional analyses of family-law decision-making.

Introduction

The Judgment of Solomon is among the most memorable moments in the Old Testament. Faced with two women claiming the same baby as their own, King Solomon offered a “compromise” judgment: half a baby each.1 He thus identified the child’s true mother: the one who cried out. While we still refer to extraordinary verdicts as “Solomonic judgments,”2 the biblical account is probably based on a much older folktale.3 No matter its origins, the tale reminds us that family law has always been full of split decisions.4 This Essay argues that the most fundamental “split decision” in family-law jurisprudence concerns whether to maintain a commitment to generally applicable rules of law, even where doctrine leads to results that contravene deeply held instincts about American family life. This decision will become more difficult—and more important—as Americans continue to develop increasingly diverse preferences regarding the family’s form and function in contemporary society.5

This rough tradeoff between law and equity is especially pressing for the family-court judge. The heart-rending facts of family-law disputes often drive courts to rely on outcome-driven reasoning.6 Family courts are prone to privilege the immediate effects of their decisions over the consistency of the doctrine those decisions create. This tendency puts contemporary family-law practice in tension with liberal rule-of-law ideals, which prize the consistent and predictable application of abstract rules over socially or normatively desirable results in any particular case.

Friedrich August von Hayek’s writings on law and liberty are exemplary of the liberal tradition with which family law finds itself at odds. According to Hayek, outcome-driven reasoning reflects courts’ imposition of particular judgments, arbitrary decisions of judicial whim harkening back to the dark days of the Star Chamber.7 Hayek argues that judges should apply generally applicable rules dispassionately and objectively, even (in fact, especially) in cases in which they lead to normatively ugly results.8 But the depth and breadth of normative preferences regarding family life in contemporary America makes the dispassionate application of abstract rules especially difficult in family court. Thus, applying Hayek’s theory of law and liberty to family-law disputes pushes Hayekian ideals to their limits, subjecting them to a kind of trial by ordeal.9 If Hayek’s commitment to the rule of law is defensible in family court, it is probably defensible anywhere.

But just as family law tests Hayek’s framework, Hayek’s framework tests family law. The human costs involved in family law’s “hard cases”10 are uniquely transparent and personal, and therefore political.11 In such cases, the temptation to deviate from objective, dispassionate application of generally applicable laws is especially severe. But when judges bend rules to dictate normatively desirable results, they obscure defects in the law. And when judges obscure defects in the law, they stymie democratic change. By testing family-law theory against family-law practice, and family-law practice against Hayek’s framework, this Essay identifies opportunities to improve the democratic accountability of American family-law doctrine.

The Essay follows in three Parts. Part I extends Hayek’s framework to the family-law context by comparing core tenets of his theory of law and liberty to themes in family-law scholarship, especially the evolution of divorce and alimony regimes. Part II critiques modern family-law practice, measuring it against Hayek’s exacting definition of the rule of law in case studies of child support and custody. Finally, Part III weighs Hayek’s critique of outcome-driven judicial reasoning against the objectives of contemporary family law and assesses which has the better of the argument. I conclude that, despite the risk of perverse results in the short term, family-law practice would benefit in the long run from greater attention (but not slavish adherence) to Hayekian values of predictability, adaptation, and equal application.

I. hayek on family law

The application of Hayek’s legal framework to family law is undertheorized. This is probably because Hayek’s writings do not include a detailed treatment of family law.12 I do not argue that Hayek’s framework is the “golden and streight metwand”13 against which family-law theory and practice must be assessed. Instead, I humbly suggest that Hayek’s framework provides a fresh and productive vantage point from which to (re)consider American family law.

Despite Hayek’s silence on the topic, the dearth of scholarship applying Hayek’s insights to family law is surprising for at least three reasons. Each of these reasons justifies further exploration of the intersection between Hayek’s philosophy and family-law doctrine. The first justification for applying Hayekian thought to family law is Hayek’s occupation as an economist.14 While his books Law, Legislation, and Liberty, The Fatal Conceit, and The Constitution of Liberty implicate legal history and political theory, he is better-known for his economics-focused The Road to Serfdom.15 Hayek’s background in economics renders his absence from modern family-law scholarship especially surprising, and the invocation of his ideas especially productive. That is because much influential family-law scholarship focuses on the family as a fundamentally economic unit of society.16 In fact, the etymological root of “economy” is the Attic Greek οἶκος (“oikos”), which referred not to the market but to the household as “a site of production (including the production of human beings), of welfare provision, and of consumption.”17 It was only in the nineteenth century that “the English term ‘economic’ lost its reference to the household and became proper to the market.”18 Blackstone’s description of “oeconomical relations” included the reciprocal household obligations between master and servant, husband and wife, parent and child, and guardian and ward.19 Modern American family law remains fundamentally economic, in the market sense of the term. One of family law’s overriding goals is minimizing state outlays by externalizing the costs of family-law problems.20 It is unsurprising, then, that much of the last half-century's influential family-law scholarship has come from scholars with economics backgrounds or applying economic analyses.21 Hayek’s ideas, among the most influential in post-World War II economics, thus deserve greater consideration in family-law debates.

Second, Hayek and contemporary family lawyers draw on the same core sources. The most obvious example is Henry Sumner Maine, a nineteenth-century legal historian whose theory of evolution “from status to contract”22 influenced both Hayek23 and modern family-law scholarship.24 More generally, contractarian ideals were imparted to American family lawyers through Scottish intellectuals,25 just as Hayek’s emphasis on customary law emerged from David Hume’s writings.26 Hayek’s shared intellectual heritage with contemporary family lawyers calls for scholarship on the implications of Hayekian thought for family law and vice versa.

Third and finally, applying Hayek’s rule-of-law framework to American family-law theory and practice exposes contradictions between Hayekian ideals and those of his putative intellectual heirs. This justification for importing Hayekian analysis into family law is largely beyond the scope of this Essay and will be the subject of future research. In brief, the argument goes like this: Despite Hayek’s explicit dissociation from conservative politics,27 many modern claimants to his intellectual legacy are neo-Burkean cultural conservatives.28 These same cultural conservatives have hammered “family values” and lamented the decline of the “traditional” family since at least the Reagan Administration.29 The contradiction between Burkean conservativism’s emphasis on preserving tradition at all costs and Hayek’s commitment to socio-legal evolution through the general application of unpopular laws has gone unremarked upon by family-law commentators. Contrasting modern conservatives’ attempts to legalize their policy preferences against Hayekian theory is an important step towards revealing the slippage between culture war “conservativism” and its purported intellectual roots.30

My comparison of Hayek’s theory to family-law scholarship organizes Hayek’s insights into three categories: predictability, evolution, and equal application.

A. Law and Predictability

The first of Hayek’s insights—predictability—is evident in his use of Maine’s “status to contract” framework to support his theory of evolution from “a state in which the rules . . . single out particular persons or groups and confer upon them special rights and duties” to “a system in which all coercive action of government is confined to the execution of general abstract rules.”31 This latter form of government embodies key principles of contract law: rules are universally applicable, produce highly predictable results, and thus facilitate productive long-term investment.32 Particular judgments, on the other hand, are frequently based on status. The bête noire of Hayek’s framework, such status-based judgments undermine the predictability of court decisions and thus stymie efficient private ordering.33

Family lawyers also value predictability. In fact, Professors Robert H. Mnookin and Lewis Kornhauser understand the “primary function” of family law “not as imposing order from above, but rather as providing a framework within which divorcing couples can themselves determine their postdissolution rights and responsibilities.”34 Consistent enforcement of broadly applicable family-law rules facilitates private ordering. If divorcees-to-be can reliably predict litigated outcomes based on known facts, then rational couples will spare themselves the delay and expense of trial in favor of settlement on the courthouse steps.35

In Hayek’s framework, as in family court, the predictability of litigated outcomes facilitates what some call the “channeling function.”36 From this perspective, foreseeable legal proscriptions articulate the outer boundaries of a “protected sphere”: actions within the sphere are permissible according to law, and not subject to redress by state coercion.37 When family law is enforced generally and predictably (i.e., not enforced to direct normatively desirable results based on the unique facts of individual cases), the boundaries of the protected family sphere are clear. Consequently, rational actors will “channel” family relationships, and the terms of those relationships’ demise, into the protected sphere to avoid state coercion.38 Much family-law scholarship concerns the ideal size and shape of this protected sphere,39 which Hayek would probably prefer to maximize.40 Within Hayek’s social-evolutionary framework, however, substantive concerns regarding the protected sphere’s contents take a back seat to structural imperatives. This is the second Hayekian insight for modern family law.

B. Evolution Through Cultural Adaptation

In Hayek’s framework, the process by which norms are reached, reinforced, and contested is far more important than the substance of those norms. Indeed, Hayek’s theory of law and liberty can be read as a content-neutral and fundamentally procedural proposal to ensure that norms (like the scope of the protected sphere) remain subject to perpetual contestation.41 On this read, Hayek’s social-evolutionary framework is analogous to due-process fundamentalism: so long as debate on the scope of the protected sphere remains free and open, the substantive result of that debate is above reproach.

To understand Hayek’s vision of evolution through cultural adaptation, one must first look to his insights about the “particular circumstances of time and space.”42 In brief, Hayek argued that Soviet-style central planning underperformed the liberal market order because individual market participants are better suited than bureaucrats to assess and pursue their own wants and needs.43 The object of Hayek’s critique was not just socialism, but the premise of perfect (Cartesian) reason upon which it is based.44 Because no central planner can fully comprehend the particular knowledge widely dispersed throughout society, Hayek argued, the state maximizes allocative efficiency only by leaving room for market participants to act in their own interests.45

Contemporary family-law scholars share Hayek’s appreciation of the particular circumstances of time and space.46 For instance, the judicial archetype advocated by Mnookin and Kornhauser echoes Hayek’s critique of Soviet central planning. Portraying law not as the embodiment of Cartesian reason, but instead as “prophecies of what the courts will do in fact,”47 Mnookin and Kornhauser accept that judges lack the omniscience required to direct ideal results in every case. Instead, litigants themselves—who have the most accurate assessments of their own wants and needs—achieve optimally efficient outcomes when left to “bargain in the shadow of the law.”48 Thus, judges facilitate spontaneous ordering and maximize allocative efficiency by recognizing the limits of their own “particular knowledge”49 and maintaining fidelity to the backdrop of generally applicable rules against which settlements are negotiated.50

Thus, Mnookin and Kornhauser, in their analysis of family law, and Hayek, in his critique of central planning, seem to agree that informal private ordering is preferable to rationalist design. The advantage of private ordering over rationalist design is poignantly illustrated by a famous example from Professor Roger Fisher, a contemporary of Mnookin and Kornhauser’s. Fisher asks us to consider two children fighting over an orange: one wants the zest (for a cake) and the other wants the pulp (for juice).51 The children’s particular knowledge enables them to reach a more efficient settlement than the Solomonic rationalist (who would, presumably, split the orange in half).52

Hayek would support Mnookin and Kornhauser’s theory of bargaining in the shadow of the law, in part on the basis that settlement on the courthouse steps creates a petri dish for spontaneous evolution of informal institutions53 for family-dispute resolution. Moreover, Hayek would argue that informal settlement is facilitated not by pure reason (even that of the parties to the dispute), but instead by recourse to customary principles like fairness and reasonableness. David Hume, one of Hayek’s core influences, would suggest that this is because informal family-law rules are too inchoate to have been designed according to ideas, and are instead generated through impressions created by context and custom.54 This “bottom-up” (empirical) rather than “top-down” (rationalist) model of family lawmaking enables society to take advantage of the “special constellations” of knowledge dispersed among diverse disputants.55

The informal and spontaneous process of family lawmaking identified by Mnookin and Kornhauser leaves space for the gradual evolution and adaptation of family law to suit novel circumstances. Maintaining space for the spontaneous evolution of laws and norms—the antithesis of rationalist control—is Hayek’s categorical imperative.56 Recast in economic terms, such evolution is equivalent to eschewing Soviet-style central controls in favor of letting the market work. Applying Hayek’s analysis to Mnookin and Kornhauser’s observations demonstrates that family law’s relative flexibility and informality permit disfavored subgroups—whose preferences may be overlooked or disdained by rationalist legislators—to experiment with norms drawn from their unique circumstances. This flexibility augments the entire society’s knowledge base, through what amounts to informal legal pluralism: mainstream family law is, in general, well-suited to adopt alternative resolutions favored by minority groups when they prove superior to the majority’s status quo. The efficiencies of legal pluralism are lost where judges direct normatively desirable results in individual cases because such cases make family law less predictable, which disincentivizes informal dispute resolution, in turn minimizing the space for the spontaneous evolution of new family norms.

In Hayek’s and Mnookin and Kornhauser’s views, predictability facilitates innovation. This is especially so when predictability creates space for disfavored subgroups’ “special constellations” of particular knowledge to bubble up into the mainstream.57 Two examples—the twentieth-century dawn of no-fault divorce and the modern twilight of alimony awards—illustrate how predictability promotes evolution in the family-law context.

1. Example 1: No-Fault Divorce

At the beginning of the nineteenth century, divorce was available only for a limited “menu” of fault grounds.58 As social and physical mobility increased, however, so did demand for divorce. Improved mobility increased opportunities for a trailing spouse to claim de facto abandonment, an enumerated fault ground, and thus divorce an absentee leading spouse.59 By the time first-wave feminism crested in the 1920s, fault-based divorce was so common that mutually dissatisfied spouses would “collude” with one another to contrive fault grounds for divorce.60 Over the next forty years, the phenomenon of “collusive divorce” led legislatures to approve “no-fault” divorce to stanch the deluge of sham proceedings.61

Though no-fault divorce was a radical break with prior family-law doctrine, its rise was a spontaneous reaction to lived experience, not the result of constructivist reason. Dissatisfied couples took advantage of the predictable grounds on which courts granted fault-based divorces to “bargain in the shadow of the law” over the terms of their (effectively no-fault) separation. Eventually, the family-law bar became so demoralized by the parade of sham fault divorces that lawyers and judges alike began agitating for divorce reform to prevent the legal profession from further debasing itself by abetting fraudulent fault divorce cases.62 If, on the other hand, courts had refused to consistently enforce fault-based divorce doctrine in favor of directing normatively “desirable” results, the social-evolutionary pressure that presaged the no-fault revolution may never have reached a critical mass sufficient to compel legislative reform. Thus, courts’ commitment to the flawed institution of no-fault divorce triggered the evolutionary cycle that ushered in our modern no-fault system. This is Hayek’s model of spontaneous legal evolution, driven by the predictable application of general rules.

2. Example 2: Alimony’s Decline and Reform

A second evolutionary episode, precipitated by the “specific constellation” of circumstances present during early feminist movements, is the decline and subsequent reform of alimony awards. Until the late-nineteenth century, the traditional common-law rule of coverture prevented married women from holding property separately from their husbands. Under such conditions, alimony awards were necessary to support dispossessed women in the event of divorce.63 Even after coverture was abolished, alimony continued to serve a compensatory function in fault-only divorce regimes. Awards were typically available only to the “innocent” spouse, and “damages often approximated the standard of living the wife would have enjoyed but for her husband’s breach.”64

Following the widespread adoption of equitable-distribution principles and the advent of no-fault divorce, alimony lost both its doctrinal rationales.65 First, women’s ability to hold property separately from their husbands, and the background principle of equitable distribution of marital property upon divorce, extinguished alimony’s welfarist justification.66 Simply put, women were no longer sure to be penniless upon divorce. Second, the rise of no-fault divorce (and consequent decline of less-accessible fault-based divorce) weakened alimony’s punitive and compensatory rationales.67 As doctrinal support dwindled, justifications for alimony awards became increasingly inconsistent, and the incidence of such awards declined.68

With alimony unmoored from its historical and doctrinal foundations, its application became increasingly unpredictable.69 Alimony became a source of “play” in the joints of a divorce settlement, tempting willful tribunals to smuggle normative preferences into the divorce decree. Consequently, litigated divorce settlements became more difficult to forecast, which in turn stymied private ordering by obfuscating couples’ best alternative to an informally negotiated settlement. In response, many states have enacted alimony reforms that make the amount and duration of awards more predictable for divorcees-to-be.70 This is exactly the response Hayek would prescribe: by requiring greater consistency among litigated alimony settlements, the legislature encourages private ordering and sets the stage for another cycle of spontaneous legal evolution. Early results of this new evolutionary cycle include novel “right to retire” statutes adopted in several states.71 Florida’s recent alimony overhaul, for example, eliminates permanent alimony awards, limits the duration of alimony payments based on the length of the marriage, and permits obligors to petition for modification in anticipation of retirement.72

In Hayekian terms, alimony’s decline offers a counternarrative to the emergence of no-fault divorce. The public pressure that presaged the no-fault revolution stemmed from judges’ stolid, predictable application of a fault-based regime that no longer reflected mainstream social consensus. Alimony reform, by contrast, was largely spurred by legislative reaction to courts’ unpredictable application of a regime that slipped its doctrinal moorings.73 The alimony counternarrative poses an important question: If legislative reform occurs even where courts apply the law unpredictably, what’s the value of Hayek’s framework? If consistent application of outmoded doctrine isn’t a necessary condition for legal evolution, why is the practice justified?

The answer is simple. Even if consistent application of outmoded doctrine isn’t a necessary condition for evolution, it is an undeniably important one. For every instance where constituents and legislators notice and address courts’ unpredictable application of law to suit normative ends, many such instances will go unaddressed.74 Unpredictable application of outmoded doctrine is especially likely to remain unchallenged where it favors dominant interests at the expense of subaltern groups.75 Alimony presents the rare case where courts’ inconsistent application of the law—and the corresponding unpredictability of litigated outcomes diminishing incentives to settle disputes—has negative implications for anyone who is married, plans to marry, or is a dependent of a marital relationship, which is to say most of us.76 Absent such conditions—that is, almost always—courts’ attempts to self-remedy perceived shortcomings of outdated doctrine are more likely to stunt than to foster meaningful law reform. On the other hand, consistent judicial implementation of generally applicable rules, including outmoded ones, will encourage private ordering and foster evolution through cultural adaptation.

C. Law’s Equal Application

Hayek’s third insight for family law is that, in addition to being abstract and general, the laws of a society that has evolved from status to contract must be equal.77 Ever the empiricist, Hayek partially justifies this position on efficiency (as opposed to normative) grounds: discriminatory rules inhibit competition, limit individuals’ opportunity to take advantage of their particular knowledge, and undermine predictability. Thus, Hayek argues, societies without discriminatory rules have historically fared better than those with discriminatory rules.78

Hayek’s definition of “freedom” also demands law’s equal application. Hayek defines freedom as the absence of coercion.79 He accepts that some coercion, by generally applicable norms that proscribe certain courses of conduct, is unavoidable.80 But where coercion takes the form of arbitrary will exercised by another—as it does in the case of discriminatory rules—freedom is offended.81 Discriminatory rules are not generally applicable, and thus not “laws,” but rather coercive commands.82

Hayek’s disdain is not limited to facially unequal laws. He likewise deplores the unequal application of general rules by willful tribunals to dictate particular results. Hayek’s framework of law and liberty requires judges to subordinate their own normative preferences to a single overriding end: maintaining the legal order itself.83 While spontaneous ordering through the evolution of customary rules is indispensable, enacting these changes is the province of politically accountable legislators.84 Judicial coercion through unpredictable particular judgments must be avoided. As Hayek artfully put it, “the judge cannot be the vanguard.”85

Hayek’s call for the equal application of general laws brings us back to Maine. Discriminatory rules are often status-based, whereas rules of conduct apply on equal, contract-like terms. Maine’s “status to contract” narrative is a key theme of family law’s equality revolution in the late nineteenth and early twentieth centuries: examples include the abolition of coverture and the promulgation of Married Women’s Property Acts, which together ended a regime of status-based legal incapacity and protected married women’s rights to contract.86 Unlike Hayek, however, family-law scholars justify the contractarian turn of the equality revolution in both normative and allocative terms.87 Whereas Hayek would highlight the efficiencies unlocked by women’s participation in the market, family lawyers view equality as good (or bad), and an end unto itself.88 This normative streak sometimes leads family-law judges to inject status concepts into the marriage regime when contractarian (i.e., procedural) equality does not lead to the substantive outcome the court desires.89 To Hayek, these particular judgments are an affront to equality.

II. modern family law in hayekian perspective

The foregoing comparison of Hayek’s framework and family-law theory suggests that the two share meaningful similarities, even if family lawyers are more willing to consider normative or subjective priorities than Hayek would prefer. Family-law theory and family-law practice, however, are two different kettles of fish. Take child support as an example. In theory, it is simple for a court to calculate child support according to statutory guidelines and enter a judgment requiring the obligor to pay. In practice, however, courts themselves are powerless to enforce child-support awards, and must rely on tools created by the legislature and wielded by the executive to secure compliance.

In this Part, I apply Hayek’s framework to family law in action in two domains: child support and custody. I focus on these two areas of family law because they best illustrate the stark distinctions between Hayekian ideals and family-law practice. In child-support and custody cases, judges seem especially eager to substitute their own normative preferences for those of the legislature. The result is decreased predictability and, in turn, stunted legislative innovation.

A. Child Support: The Family Administrative State

U.S. child support is coercive, administrative, and federalized. What makes child-support law problematic in Hayekian terms is not its coerciveness alone,90 but also the administrative—and thus unavoidably federalized—character of its coercion. The bureaucratic flavor of American child support also raises democratic accountability concerns familiar to administrative-law scholars: victims of administrative coercion have little recourse through democratic processes. Even if administrators are appointed by elected officials, they remain relatively insulated from electoral pressure, diminishing their incentive to avoid particular judgments that satisfy the administrator’s normative preferences.

Child support’s coerciveness has deep historical roots. For over 400 years, the Anglo-American child-support regime has required noncustodial parents to seek private employment to support custodial parents or face criminal and civil sanctions.91 This regime has two goals: to support children and indigent custodial parents while minimizing cost to the state.92

Modern child-support, however, hardly resembles its British origins. The “child support” provisions of the 1601 Elizabethan Poor Law forced the children of welfare recipients into apprenticeships to minimize the costs of this proto-welfare scheme.93 While the law surely constrained individual liberty,94 it was nonetheless generally applicable, approved by a democratically accountable legislature, and subject to binding judicial interpretation.95 Not so today.96

Child support is nominally handled under state law. State courts enter child-support awards according to the state’s statutory guidelines. Where payment is not forthcoming, the custodial parent may bring a civil action to enforce the child-support award. Payment in full is the exception, not the norm.97 This is a policy failure: where child support goes unpaid, but the custodial parent’s need remains, the federal or state government is left holding the bag. To avoid this result, the Social Security Act of 1935 granted the federal executive branch enormous discretion over child support enforcement.98 Federal funding for state welfare programs was conditioned on changes to state child-support law and policy,99 adding a federalism dimension100 to the accountability concerns101 posed by child support’s administrative turn.

First, states were required to award child support according to guidelines consistent with Department of Health and Human Services regulations.102 Further, states were required to establish “IV-D agencies,” named for Title IV-D of the Social Security Act, to administer child-support enforcement.103 IV-D agencies are federal-state partnerships, supervised by the federal Office of Child Support Enforcement. They are interoperable with other federal and state agencies, giving IV-D agencies broad access to information like obligors’ bank accounts and tax filings.104 Using this information, the agencies can effect automated asset seizures to satisfy child-support arrears, such as by rerouting the delinquent obligor’s tax refund to the custodial parent.105 Some enforcement action is completely removed from the state’s or obligee’s discretion: for example, wherever an IV-D agency is assisting in child-support enforcement, wage withholding is mandatory under federal law.106

Where wage withholding and asset seizure prove insufficient, the Social Security Act's child-support enforcement apparatus can levy additional sanctions through its interoperable network of federal and state agencies. Nonpayment can be addressed by cutting welfare benefits, suspending driver’s and professional licenses, and state or federal criminal contempt orders.107 Custodial parents are not immune from the coercion of contemporary child-support enforcement: custodial parents receiving certain welfare benefits are required to seek child support, including by providing identifying information about the noncustodial parent and submitting to compulsory genetic testing.108

Hayek was no fan of the administrative state, and his gripes have special force in the context of child-support enforcement. Hayek identified administrative rules—in contrast to generally applicable legislation derived from spontaneous evolution—as prescriptive, ex post, and potentially self-serving sovereign commands.109 Hayek’s critique of the administrative state implicates both accountability and separation-of-powers concerns. Unlike the objects of legislative coercion, victims of administrative coercion have little recourse through democratic processes. Bureaucrats, though sometimes appointed by elected officials, are not directly accountable to the people through elections. Insulated from democratic accountability, administrators thus have little reason to avoid particular judgments—especially as compared to legislators or the executive. When it comes to federalized child-support enforcement, the threat of unaccountable lawmaking is even more severe: in addition to broad judicial deference,110 administrators benefit from a federalism “shell game” that obfuscates the source (federal or state) of administrative coercion.111

By delegating broad rule-making authority to agencies, legislators not only empower unaccountable administrators to pursue legislative ends through potentially arbitrary commands,112 but also subvert one of our most important informally generated orders: the separation of powers.113 Administrative rulemaking and adjudication combine the legislative and judicial powers—that is, the power to both write the rules and to enforce them.114 Combining rule-making and rule-enforcing powers sets the table for a feast of particular judgments: where an administrative rule leads to a normatively (to the bureaucrat) undesirable result, administrators can simply (and unpredictably) decline to apply the rule. The separation-of-powers concerns posed by administrative child-support enforcement are exacerbated by federal preemption doctrines, which guarantee that the normatively charged particular judgments of administrators crowd out state legislatures’ attempts to take advantage of their particular knowledge by experimenting with alternative child-support regimes.115

The hornbook child-support enforcement case Eunique v. Powell illustrates Hayek’s critique of administrative law, especially as it interacts with cooperative federalism. In Eunique, a parent with child-support arrearages was denied a passport pursuant to a State Department regulation.116 The parent challenged the regulation as a violation of her Fifth Amendment freedom to travel abroad.117 The Ninth Circuit upheld the regulation, concluding that the State Department had not violated the parent’s Fifth Amendment rights, but simply “ordered her priorities for her.”118 Ms. Eunique and other dissatisfied voters would have been hard-pressed to make their displeasure heard through democratic means, because the decision makers accountable for the result are far from obvious. Are California lawmakers responsible because they agreed to certify child-support arrearages to the Secretary of Health and Human Services?119 Or are federal lawmakers responsible because they condition funding for state child-support collection on reporting efforts?120 What about the State Department, who issued the regulation in question?121

Accountability concerns posed by child-support enforcement are exacerbated by the powerful sanctions courts have upheld against delinquent obligors. In State v. Oakley, for example, the Wisconsin Supreme Court upheld a probation condition prohibiting an obligor from having more children while his child support remained in arrears.122 To make matters worse, the Supreme Court in Turner v. Rogers held that the Sixth Amendment right to counsel does not extend to civil contempt proceedings for child-support enforcement, even where the obligor faces prison time for failure to pay.123

Some might object that child-support doctrine can actually be reconciled with Hayekian principles. On this narrow view of child-support law—one that considers rules of decision but not remedies—child-support doctrine is independent from the evils of administrative enforcement. Put simply, accountability concerns imbricated in the administrative character of child-support enforcement are not chargeable to courts. Courts merely issue child-support awards, and the unaccountable coercion with which those awards are enforced is a problem for the political branches. Moreover, courts ultimately decide whether the delegation of legislative or executive power to administrative agencies accords with the Constitution. But this counterargument fails for at least two reasons.

First, court-issued child-support awards are a necessary predicate for administrative enforcement. Courts are at least complicit in the unaccountable coercion that flows from their pronouncements. More important, hornbook cases suggest that courts are not only complicit but in fact eager to vindicate the concrete ends of the administrative enforcement apparatus (supporting custodial parents at minimal cost to the state), even where this requires them to ignore customary rules. In Miller v. Miller, for example, the New Jersey Supreme Court held (with, it admitted, no statutory or common-law basis) that especially loving stepparents could be equitably estopped from denying child support to their stepchildren,124 but warned that this newly invented doctrine should be “applied with caution” so as not to discourage stepparent-stepchild bonds.125 This is the definition of a particular judgment: directing a normatively desirable result in one case, while attempting to limit the rule’s prospective general applicability.

Thus, even a charitable assessment of administrative child-support enforcement is inconsistent with Hayek’s framework of law and liberty. First, all states have accepted funds conditioned on the application of child-support guidelines approved by federal regulators. Even if child-support awards were predictable—and cases like Miller suggest they are not—the spontaneous evolution of child-support doctrine is stunted by federal regulators’ insulation from democratic accountability. What’s more, the administrative character of child-support enforcement—often compelled by federal law regardless of the custodial parent’s preference—reduces space for informal ordering, further inhibiting healthy, organic change in our child-support regime based on parties’ particular knowledge of time and space.

B. Custody and the “Mother of All Standards”126

Custody is a remarkably standard-laden area of family law.127 Standards confer discretion on judges and thus, as Hayek argues, empower them to make willful judgements. The custody decisions reviewed below support Hayek’s contention that such willful judgments—even if temporarily satisfying—may do more harm than good in the long run.

At the beginning of the nineteenth century, the law awarded fathers custody upon divorce, incident to their presumed property right in their offspring’s labor.128 After the Fair Labor Standards Act made children a financial liability rather than an asset, the common-law rule was replaced with a presumption of maternal preference.129 Following the equality revolution of the mid-to-late nineteenth century, maternal preference eventually gave way to the status-neutral (i.e., sex-neutral) “best interest of the child” standard.130

Determining the “best interest of the child” is, as one family-law expert colorfully puts it, the “Mother of All Standards.”131 The Uniform Marriage and Divorce Act, “a representative example of the considerations that courts take into account when deciding custody,”132 requires judges to consider five unweighted factors in assessing the best interest of the child.133 State practice is even more complicated: Mississippi has a thirteen-factor test, concluding with “other factors relevant to the parent-child relationship.”134 In practice, the best-interest standard is so flexible that it rarely constrains judicial decision-making.135 This flexibility is unsurprising, given that the standard attempts to assess the interests of a nonparty to the litigation (the child) based on contingent future interests instead of empirical facts.136

Doctrinal custody cases illustrate that the best-interest standard fails to meaningfully constrain judicial discretion, and thus facilitates courts’ imposition of particular judgments to satisfy concrete ends. The best-known custody case is probably Palmore v. Sidoti.137 In that case, a white divorcee was attempting to obtain custody of his child from his white ex-wife because she had recently remarried a Black man. The Court accepted the premise of the ex-husband’s argument, agreeing that “a child living with a stepparent of a different race may be subject to a variety of pressures and stresses not present if the child were living with parents of the same racial or ethnic origin.”138 Nevertheless, the Court rejected the ex-husband’s claim, holding that “the reality of private biases and the possible injury they might inflict” are not “permissible considerations” in the best-interest inquiry.139 The Court thus refashioned the best-interest standard to maintain the appearance of colorblindness.140

Palmore is a laudable decision in that the Court reached the correct outcome. But the decision’s rationale has had disastrous ramifications for the predictability of custody decisions. The Court assumed that the best interest of the child would have been served by “living with parents of the same racial or ethnic origin”141 (a dubious proposition), but then carved out an exception from the best-interest inquiry to blind itself to that assumption and avoid an ugly result. Notwithstanding the validity of the Court’s questionable assumptions about mixed-race parenting, is a standard that directs racist results absent extraordinary intervention really a standard worth having?142 Just as important, is a standard that the Court can change from decision to decision really a standard at all? By picking around hard questions posed by deficiencies in the best-interest standard, the Supreme Court extended the life of the standard. If the Court had engaged with those questions, perhaps the standard’s fundamental inaptitude would have become clear. But by directing a particular result to maintain the appearance of colorblindness, the Court vitiated a prime opportunity for much-needed evolution in custody doctrine.

Evidently, application of the best-interest standard is influenced by courts’ “attitudinal biases.”143 Arneson v. Arneson stands out as another example. In that case, the court awarded primary custody to an able-bodied mother over a physically disabled father, relying partially on an appointed expert’s “concerns about his ability to respond in an emergency.”144 The fact that Mr. Arneson cohabited with his second wife before their marriage was cited by the trial court as a factor cutting against his custody claim, even though the second wife was a child-care worker who could assist Mr. Arneson in caring for his daughter.145 Whether the court’s holding was animated by the inertia of maternal preference, animus against disabled people, or disdain for premarital cohabitation, it seems unlikely that the “best interest of the child” was the rule of decision.

In light of the best-interest standard’s manifest shortcomings, courts and commentators have introduced numerous alternatives, such as the primary-caretaker,146 psychological-parent,147 and continuity-of-care148 standards. Although these tests are probably an improvement, they remain open-ended and easily manipulable by judges to satisfy concrete ends. Often, these ends accord with the social biases that animated the rule of maternal preference. As one proponent of the primary-caretaker standard put it, the standard’s five criteria “usually, but not necessarily, spell[] ‘mother.’”149 And in a well-known case applying the continuity-of-care standard, the court invented a “breadwinning” factor to justify granting custody to a working mother once it became clear that a stay-at-home father (who might require state support to care for the children) would otherwise prevail.150

The foregoing cases suggest, to me, that Hayek was right. At least in the custody context, multifactor tests unduly expand judicial discretion. Such tests also reflect rationalist hubris: they assume that human reason can fully assess the complex factual realities upon which multifactor tests are superimposed.151 In reality, judges do not have that kind of bandwidth—they are overwhelmingly likely to fall back on customary rules (or even rote biases) as “shorthand.”152 Custody law has replaced the customary rule of maternal preference with multifactor best-interest tests. Nonetheless, courts continue to award custody to mothers at disproportionate rates.153 One potential explanation is that, rather than earnestly applying a thirteen-factor best-interest test,154 or a primary-caretaker standard that usually awards custody to the mother,155 judges are simply falling back to the shorthand of maternal preference. Regardless of whether customary rules produce preferable outcomes, at least Hayek’s preference for evolved norms reflects the reality of judicial analysis, instead of allowing judges to cloak their normative preferences in the nominally dispassionate rationalism of a multifactor test.

This is not to say that Hayek would recommend that family law bring back the doctrine of maternal preference or let customary rules control in perpetuity.156 It also isn’t an effort to exaggerate the indeterminacy of current doctrine in service of a campaign against the rule of law.157 I merely suggest that law should reflect widespread social assumptions, even when those assumptions make us ashamed. To progressives’ complaints that this will harm disfavored groups in the short run, Hayek offers a response that sounds in progressive teleological terms: In the long run, how will those same reformers know which areas of law incorporate “backwards” customary rules—that is, how will we know which laws to change through democratic processes—unless they are plainly explicated in judicial opinions? By bending the law to obscure its reflection of outmoded or embarrassing preferences, judges prioritize alleviating symptoms over curing the underlying disease. Masking the symptoms of outmoded laws (i.e., by directing particular judgments where those laws conflict with prevailing social attitudes), judges allow the disease to metastasize by stunting opportunities for organic law reform. Managing the fever instead of allowing it to break does not prevent human suffering. It extends it.

III. costs and benefits: hayek’s place in modern family law

There are no easy answers to the questions raised by measuring family-law practice against Hayek’s model of law and liberty. The frightening arsenal of coercive tools available to the administrative child-support enforcement apparatus, and the minimal accountability with which the executive wields them, is antithetical to freedom. But for the indigent custodial parent—at least in the short run—preserving separation of powers and democratic accountability through the dispassionate enforcement of generally applicable rules will not put food on the table or pay rent.158 By the same token, it seems unnecessary to risk undermining the progress achieved in Palmore simply because the Supreme Court’s result was not wholly consistent with applicable law.

Hayek’s framework offers much for family lawyers to consider. While resolving “hard cases”159 in favor of predictability and consistency rather than normatively desirable outcomes requires us to take a “leap of faith,”160 Hayek’s commitment to generally applicable rules could pay dividends in the long term. If judges apply the law neutrally—and are seen by the voting public to do so—they become our canaries in the coal mine. Where an absurd result is reached, the popular response would not be to impute policy preferences to the court, but instead to identify defects in the law applied. And where the law creates perverse results, the response should be to change the law.161

Modern family law operates in opposite fashion. By directing results to suit concrete ends, family-law judges treat the symptoms without addressing (in fact, by affirmatively obscuring) the underlying disease. This approach leads only in one direction: complete social and legal stagnation—in direct opposition to the perennial norm-bending and evolution that Hayek associates with a productive society. Although modern family law might sometimes achieve normatively desirable outcomes in the short-term, Hayek suggests that the long run is the only thing that matters. He would have judges sacrifice individual litigants on the altar of justice in the interest of maintaining the rule of law.162

That all sounds straightforward in the abstract. But when theory is clouded by facts—facts about real people, many of them children—Hayek’s framework is less appealing. Many of the greatest decisions in our nation’s history privileged outcome over predictability,163 and much of our anticanon is notable for embracing consistency over result.164 True, some of the most influential legal minds of their generation rejected Brown v. Board’s prioritization of policy outcome over legal principle.165 But their argument fails for the same reason Palmore was rightly decided: sometimes the difference between the right decision and the law is simply too great to bear.166

I have tremendous admiration for Hayek’s framework. I have even more admiration for judges who make the decisions required to apply it. I think it is a profoundly valuable tool that more family-law scholars should adopt. But I do not think that Hayek’s concepts of law and liberty offer the only framework for resolving family-law disputes. Rather, Hayek’s approach offers a uniquely powerful perspective for performing distributional analyses on difficult family-law issues.

Professor Janet Halley, among others, highlights the importance of distributional analysis for family lawyers.167 I agree with Professor Halley that family-law scholarship should “expose the distributional stakes of rules that affect the family, whether [those rules] are housed in family law or elsewhere.”168 Hayek’s framework is invaluable to distributional analysis of family-law rules because it helps us recognize the cost of doing what we think is “right” and the benefit of following legal principle even where it leads to normatively dissatisfying outcomes. Without the benefit of Hayek’s perspective, I fear we fail to fully appreciate the costs that particular judgments impose upon law’s consistency, predictability, and evolution. We thus fail to consider the consequences that normatively satisfying judgments have for future generations of family litigants, whose ability to bargain in the shadow of the law is diminished by inconsistent, unpredictable judgements. Hayek’s framework thus helps family lawyers perform a special kind of distributional analysis, weighing the costs and benefits of judgments vis-à-vis individual litigants in the short term and the entire family-law order in the long term.

Conclusion

The question remains: how do we know when the costs of a particular judgment are justified? I do not know. But in light of Hayek’s framework, family lawyers should champion distributional rules that require judges to justify their decisions according to predetermined criteria. We should eschew flabby multifactor standards that permit smuggled preferences in favor of objective rules that require judges to marshal factual support for their findings. In the custody context, this approach could justify a move away from the best-interest standard toward the continuity-of-care or primary-caretaker rules. It might also justify a permanent move away from alimony, which allows judges to subvert the equitable division of marital property based on normative assessments of a party’s behavior during the term of the marriage or strategy during divorce litigation. Irrespective of the particular solutions, if we accept—and I do—that family judges should subvert the overriding imperatives of predictability, consistency, and organic change when litigants’ humanity so requires, we should at least make judges do so explicitly. Only then can we determine whether the normative benefit of a particular judgment justifies its substantial structural cost.

J.D., Harvard Law School; L.L.M., University of Edinburgh. I am indebted to the Honorable Raymond Kethledge for his guidance throughout the drafting process. I am likewise grateful to Professors Janet Halley and Jeannie Suk Gersen for stoking my interest in family law and encouraging me to write as much as possible. I am also thankful for the tireless efforts of the Yale Law Journal’s student editors—rest assured that any remaining errors are mine alone. Finally, I am beholden to Isabel Deakins for putting up with countless late-night revision requests and brainstorming sessions.