Academic

Estin on Family Law & Federalism

By Lawrence Solum

Ann Laquer Estin (University of Iowa - College of Law) has posted Sharing Governance: Family Law in Congress and the States on SSRN.  Here is the abstract:

Despite the federalism rhetoric that still marks political debate and judicial opinions, family law in the United States today is a complex mixture of state and federal law. This paper identifies and evaluates three different forms of federalism in family law, each of which presents distinct pragmatic and constitutional questions. Congress has used its spending power to reconfigure state child support and child welfare laws on a cooperative federalism basis, and its Commerce Clause and Full Faith and Credit powers to legislate in areas that pose horizontal federalism problems. Congress has also preempted state family law with legislation in areas including civil rights, tax, pension, bankruptcy immigration, and international law. In all of these settings, Congress has been primarily responsible for defining the balance of national and state power, with the federal courts resisting national family legislation only when it seems likely to shift significant responsibility from the state courts to the federal courts.

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Full post as published by Legal Theory Blog on May 22, 2008 (boomark / email).