The Yale Law Journal

VOLUME
119
2009-2010
NUMBER
6
April 2010
1122-1361
Feature

When Family Matters

Alafair S. Burke

119 Yale L.J. 1210 (2010). 

In Privilege or Punish: Criminal Justice and the Challenge of Family Ties, Dan Markel, Jennifer Collins, and Ethan Leib make an important contribution to the growing literature on criminal law and families by documenting the ways that criminal law advantages and burdens actors based on familial status and identifying the potential harms that are unleashed when criminal law recognizes family status. This Feature seeks to complement that contribution by situating the authors’ observations within the context of two considerations beyond Privilege or Punish’s immediate focus: chronological trends and the practical realities that can shape application of formal law. By distinguishing criminal law’s traditions from contemporary trends, the Feature identifies both a gradual de-emphasis of legally recognized family forms and an increased willingness to enforce criminal law within families, regardless of how they are comprised. It concludes by arguing that effective enforcement of criminal law within families often requires the criminal justice system to yield to family relationships, not for the purpose of promoting preferred family forms, but to serve the criminal law’s familiar retributive and utilitarian goals.