Waxing State, Waning Family: The Radical Agenda of the American Law Institute

The one great principle of the English law, is to make business for itself.—Charles Dickens, Bleak House In the modern state, law—like nature—displays a marked distaste for a vacuum. Spurred by elites distrustful of independent social institutions and a cultural embrace of atomistic individualism, the United States in past decades has experienced a dramatic incursion of legal regulation into mediating institutions like the family. Institutions that had previously been considered outside the domain of state control in order to provide a check on the totalitarian temptation find themselves under increased scrutiny. As changes in family law have dovetailed with societal trends, family breakdown has become more common, triggering yet more legal changes thought to be justified by the parlous state of family life. More and more aspects of the family, ultimately to include the very definition of marriage, family, and parenthood, are thus subjected to the jurisdiction of courts and government agencies. Of the elites advocating invasive legal interventions, none is more exclusive than the American Law Institute; no proposals for the expansion of the state into the family domain better illustrate the expansive tendency of the law than its recent proposals for a revolutionary overhaul of American family law. The American Law Institute is a small and highly selective group of judges, practitioners and legal academics. Its first meeting, in 1923, was attended by three justices of the Supreme Court, five judges of the federal appeals court, and twenty-eight state high court judges, along with representatives of the American Bar Association and the National Conference of Commissioners on Uniform State Laws. It was initially funded by a large ten-year grant from the Carnegie Foundation. The institute’s stated purpose was to address perceived confusion and complexity in the law precipitated by a flood of court decisions, statutory enactments, and administrative regulat
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