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Clare Huntington, Pragmatic Family Law, __ Harv. L. Rev. __(forthcoming 2023).

About two-thirds of states in the U.S. have functional parent doctrines—doctrines that extend at least some parental rights and obligations to an individual based on developing a parent-child bond and parenting the child, regardless of a biological or legal tie to the child. Progressive parentage reforms that dislodge parental recognition from traditional preoccupations with marriage and biology have in recent years spread in states controlled by Democrats, primarily in the Northeast and on the West Coast. Yet, the map of jurisdictions with functional parent doctrines does not look like the electoral college map in the 2020 presidential election. Instead, functional parent doctrines exist in Connecticut and Kentucky, New Jersey and Nebraska, Washington and West Virginia.

The story of functional parent doctrines is not anomalous. Other important interventions in the family—from the legalization of gestational surrogacy arrangements to the passage of Pregnant Workers’ Fairness Acts to the funding of universal pre-K programs—appear to defy the red-blue divide of contemporary America. Why have reforms of this kind—reforms that implicate divisive questions of reproduction, parenthood, gender, and sexuality—seemingly skirted the country’s hyper-polarization? In her forthcoming article, Pragmatic Family Law, Clare Huntington offers an answer: a pragmatic approach to lawmaking and adjudication. Across a range of family law issues, Huntington argues, “judges, legislators, administrators, and others are largely setting aside abstract ideals and political ideology and instead focusing on whether a doctrine or policy promotes core aspects of family and child wellbeing[.]” (P. 3.) Relying on “experience-based learning [and] empirical evidence,” decisionmakers are developing “context-specific solutions” that meet families where they are. (P. 4.)

Thoughtfully drawing on my own work with Courtney Joslin, Huntington uses functional parent doctrines as a prime example. As she explains, judges in jurisdictions across the country—red, blue, and purple—“ratify nontraditional family forms,” not through “broad pronouncements about acceptable and unacceptable” family configurations, but instead by making “contextualized decision[s]” that “center the experiences of affected families.” (P. 4.) In other words, confronted with families in which children are in fact being raised by someone who is not their biological or legal parent, judges are turning to functional parent doctrines to legally protect the child’s relationship with the person who is parenting them—a result that promotes the child’s interest in a secure parental attachment. The families at issue may feature nonmarital childbearing. They may feature queer family formation. They may feature substance use disorders, incarceration, and child maltreatment. But judges generally seem less concerned with passing judgment on families and more concerned with doing what appears best for the particular family before them. Judges, in Huntington’s vision, are being pragmatic, not political.

Huntington historicizes this pragmatic method, explaining how nineteenth-century American pragmatists emphasized “usefulness, fallibility, empirically based experimentalism, and pluralism.” (P. 27.) She locates the pragmatist approach, for example, in Jane Addams’ settlement house movement. (Pp. 29-30.) The American tradition of pragmatism provides the foundation on which Huntington builds out a vision of contemporary family law directed at problem solving over political fighting. The identification of pragmatism in present-day American family law is itself an important contribution, alerting us to a significant strand of family law decision making that offers potential and hope in a world too consumed by divisive politics.

To be clear, Huntington does not argue that, across the various domains she surveys, decisionmakers are self-consciously employing a pragmatic methodology. Instead, she sees such self-consciousness as an aspiration, and to that end, she offers a coherent framework with which to understand examples of what she terms “convergence,” “de-polarization,” and “nonpartisan pluralism” in family law. Huntington wants judges and lawmakers who eschew “values-based” resolution in favor of context-based, empirically-informed decisions to understand themselves as engaged in pragmatism. If we can appreciate the common methodology that decisionmakers have used to address what might otherwise seem like controversial questions of family policy, we might be better able to address pressing family law issues and design institutions to engage in more effective problem solving.

Huntington does not claim that polarization does not infect family law. In fact, she attends to numerous areas where polarization is pervasive—abortion access, for example. But, as Huntington shows, there is pragmatism even in our era of polarization. Too little attention is given to points of convergence. Too little scholarship focuses on how existing law may model effective policymaking and adjudication. Sure, there is much to critique in federal and state regulation of the family today. But Huntington shows us there is also much to appreciate, not only substantively but methodologically.

None of this is to say that family law should be devoid of politics. As Huntington explains, the pragmatism that she identifies has significant limitations. Most critically, Huntington describes how pragmatism has struggled to effectively confront racial inequality. Pragmatism appears to point toward universalizing and race-neutral interventions, many of which have benefitted families of color, but pragmatism is unable to address racial subordination on its own terms. There remains an important place, then, for politics—and for values-based and rights-based reasoning.

That Huntington’s framework is not totalizing is a strength, not a weakness. Huntington presents a picture of family law in motion—a world in which politics and pragmatism co-exist, ebbing and flowing. An issue that today presents itself as polarizing may tomorrow be ripe for pragmatic approaches. See, for example, Huntington’s treatment of marriage equality. Though “de-polarization on marriage equality is not complete and irreversible, . . . legal and cultural acceptance is so much more widespread than would have seemed possible from the culture wars of even twenty years ago.” (P. 22.) In her account, “the marriage equality movement was successful at least in part because the debate moved away from abstract ideals of what marriage means and instead focused on family and child wellbeing—first establishing there was no harm flowing from being raised by same-sex parents and then by establishing the harm from non-recognition.” (P. 38.)

Huntington alerts us to the promise of pragmatism. Be attentive, her article urges, to opportunities to solve real problems facing real families.

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Cite as: Douglas NeJaime, How to Solve Problems for Families, JOTWELL (February 22, 2023) (reviewing Clare Huntington, Pragmatic Family Law, __ Harv. L. Rev. __(forthcoming 2023)), https://family.jotwell.com/how-to-solve-problems-for-families/.