Repairing family law.

Source: (2008) Duke Law Journal. 57(5): 1245-1319.

Scholars in the burgeoning field of law and emotion have paid surprisingly little attention to family law. This gap is
unfortunate because law and emotion has the potential to bring great insights to family law. This Article begins to fill
this void – and inaugurate a larger debate about the central role of emotion in family law – by exploring the intriguing
and significant consequences for the regulation of families that flow from a theory of intimacy first articulated by psychoanalytic
theorist Melanie Klein. According to Klein, individuals love others, inevitably transgress against those they love out of hate and aggression, feel guilt about the transgression, and then seek to repair the damage. Individuals experience
this cycle repeatedly throughout their lifetimes, with transgressions ranging from the minor, such as parents
raising their voices to their children, to the more egregious, such as an individual conducting an illicit affair.
This Article argues that the legal process embodied in the substance, procedure, and practice of traditional family
law is at odds with the human process of love, hate, guilt, and reparation. In contexts as far ranging as divorce, child
welfare, and adoption, family law is predicated on a binary model of love and hate, with no accounting for guilt and the
drive to reparation. This Love-Hate Model actively thwarts the cycle of intimacy, greatly diminishing the opportunity
for repair in familial relationships. In short, reparation as a normative goal receives far too little attention in family law.
Although several important reforms have begun to move family law away from the Love-Hate Model, these reforms are
undertheorized and incomplete and sometimes actively challenged. An overarching theory is needed both to undergird
current reforms and to encourage others, thus moving family law more fully in a reparative direction.
To replace the prevailing Love-Hate Model, this Article proposes a Reparative Model of family law that would recognize
the full cycle of emotions and facilitate the reparative drive. A Reparative Model would modify the substance of
family law to recognize the ongoing relationships that often persist even after legal relationships are altered. It would
reform the process of family law by de-emphasizing adversarial decisionmaking. And it would change the practice of
family law by reconceiving the role of the family law attorney. Ultimately, the Reparative Model yields new perspectives
on a range of theoretical and practical problems in contemporary family law, providing a framework for the law to
account for the full, and complex, emotional reality of familial relationships. (Author’s abstract)