Sex in the City

Abstract

This Article explores a radical idea at the intersection of family law and local government law.  It outlines the surprisingly strong case for allowing local governments a voice in the dispute-resolution function of family law.  Under the existing intrastate distribution of power within family law, states set broad policies but delegate enormous discretion to individual judges to implement those policies as they see fit in individual cases.  This distribution of power is commonly criticized because it eviscerates predictability and allows a host of biases to infect judicial decisions.  This Article offers an alternate distribution of power, where cities can insert themselves between the state and the judge by providing guidance about whether, in that city, free range parenting is generally considered harmful to children or whether, in that city, adultery should trigger a disproportionate award of marital property to the innocent spouse. Such local rules of thumb have the potential to mitigate one of the most intractable problems within family law: how to cabin judicial discretion and make family law more rule-like in the absence of widespread agreement on mid- or even high-level policy goals.  More generally, local family law opens up avenues for much-needed policy experimentation, facilitates political entrepreneurship, and has the potential to reinvigorate citizen engagement with local politics. Properly structured, local family law can accomplish all of this without creating a serious risk of races to the bottom, forum shopping, externalities, or minority oppression.