Racial Myopia in [Family] Law
A Response To
abstract. Racial Myopia in [Family] Law presents a critique of Family Law for the One-Hundred-Year Life, an Article that claims that age myopia within family law fails older adults and prevents them from creating legal bonds with other adults outside the traditional marital model. This Response posits that racial myopia is a common yet complex phenomenon in almost every area of law, and it presents most often by centering whiteness as the default standard while failing to account for race and its impact on the law. Race—as well as the scholarship that incorporates race into normative family structure and identity—must be critically considered when proposing new ways of creating family units. This Response calls for active engagement with the racial history surrounding American family structures and the laws utilized to support them in order to achieve the goal of adapting family law to address the needs and interests of all older people.
Family Law for the One-Hundred-Year Life sets forth a bold new structure that allows families to opt in or out of the rights and obligations provided by normative legal frameworks focused on traditional marriage and caretaking roles within families. The Article contends that a lack of insight related to aging—“age myopia”1—within family law fails older adults, preventing them from legally arranging emotional and financial ties to other adults beyond their immediate family network. Professors Naomi Cahn, Clare Huntington, and Elizabeth Scott’s proposal focuses on customizing family relationships for the growing number of elders who will be living significantly longer lives with multiple life partners, adult relatives, and friends.2 The Article posits that family law must reflect three core commitments: (1) centering the autonomy interests of older persons; (2) addressing structural inequities; and (3) ensuring that legal mechanisms are efficient and accessible.3 Undoubtedly, the broad goals of the Article are worthy, but this Response stresses that these goals must be more incisive and inclusive. Structural inequities within family law run deep, and the Article fails to meaningfully grapple with them. The project of Family Law for the One-Hundred-Year Life is fundamentally incomplete—and possibly misguided in the reforms it advocates—without a more comprehensive reckoning with racial myopia in family law.
Racial myopia in law is complex because it manifests in many ways. Unpeeling the layers requires a breakdown of the foundational touchstones of law, including pedagogy, scholarship, practice, state and federal legislation, and the judiciary.4 The scope of this Response will focus in particular on two combinations of the aforementioned touchstones—pedagogy and scholarship, and legal practice and the judiciary. The importance of recognizing how these four pillars of law influence policy reforms and individual behavior cannot be overstated. For family law, the stakes are high. These four pillars often dictate how state and federal family laws are developed, as well as on whom they focus. The family code and other “living-room laws” govern the mode of operation for where and how people live, who provides caregiving for family members, and who is fiscally responsible for dependents within a family.5 When academic teaching and scholarship are inclusive and diverse, the chances for meaningful reform are greater because those entering law practice, as well as those writing restatements and uniform codes, will be more likely to suggest changes that consider the legal history and interrelationship of the law with various citizens of different racial backgrounds. For practicing lawyers and judges who handle family law cases daily, inclusive and diverse training can help make their legal advocacy and decision-making better informed and more equitable. However, when the normative default is whiteness, change remains elusive because the purpose of the law is not properly designed to help provide equal access to justice or ensure due process for marginalized groups of people.6 Furthermore, racial inclusivity is a culmination of both the recognition of systemic racial differences and the utilization of an informed lens to analyze current law and possible solutions to legal problems.
This Response proceeds in three parts. Part I addresses general racial myopia in law. Family law is only one example of the narrow focus of law in prescribing how the majority of American people live their lives. Racial myopia exists in fields ranging from tax law to property law. This Part sets forth the background regarding the creation and operation of law, particularly within the legal academy. Part II addresses structural inequities in family law specifically. It argues that Family Law for the One-Hundred-Year Life presents an opportunity to grapple with the persistence of racial myopia and the need to propose reforms that incorporate the lived experience of families of various racial backgrounds. It takes issue with the standard white family framework used to teach family law and emphasizes the need for inclusive scholarship among well-meaning scholars in the field. Part II also explores the practical aspects of considering race as it pertains to the legal representation of family law clients and their treatment in court. It provides examples of how research on the use of forms by pro se litigants in family law can assist legal scholars and legislators in expanding due process and access to courts for all families.
Part III considers how the Article’s failure to deal with structural racial inequities in law results in the inability of its proposed changes to meet the authors’ first and third core commitments. Centering the autonomy interests of all older persons requires consideration of the interests of a wide variety of older persons. While the Article proposes some federal legal changes that could provide better economic stability and caregiving support for older persons of different class and racial backgrounds, it acknowledges that most of these suggestions are unlikely to become law and take effect. The Article’s proposed family registration system,7 which states may be more likely to adopt, does not consider the difficulties faced by some minorities and poor families when they use pro se forms in court, nor does it address how laws and government benefits that are contingent upon marriage should change. Because the proposed registration system does not consider the implications of other extant laws, working-class, poor, and minority families may be disincentivized from utilizing the family registration system. Part III concludes with suggestions for the legal academy to wrestle with racial myopia and the academy’s role in shaping the law.
I. racial myopia in law
Law as a discipline and profession has one distinct focus: to provide structure for society and the people who live within it. Metaphorically, the law often has blinkers or blinders on so that it stays on a straight path and does not veer off into other areas. One of the consequences of wearing legal blinkers is an overly narrow focus that obscures the larger picture. An overview of the persistence of racial myopia in law frames the critique of the Article by illustrating the common tradition of this phenomena, how it operates, and how the profession can develop a racially inclusive vision.
Scholars in almost every area of law, including critical race theory, have noted that law in the United States has been historically imbalanced on questions of race.8 Tax scholar Dorothy A. Brown was one of the first law professors to consider the absence of race in the pedagogy of standard first-year legal courses such as contracts, torts, property, civil procedure, and criminal law.9 In examining the relevancy of race in cases and the role that race plays in producing economic injustices, Brown provides a core understanding that places race as central to formulating remedies to past harms.10 Inclusion of race in the discussion and analysis of ordinary cases that do not deal with claims of discrimination or segregation is rare.11 Scholar Peggy Cooper Davis demonstrated that the motivating stories of families struggling for liberation from slavery were ignored in the presentation of doctrinal stories that utilized the Fourteenth Amendment to establish family liberty and rights.12 The denial of the legal right to create and maintain ties of affection and responsibility to spouses, children, parents, or extended kin had not been connected to the meaning of the Fourteenth Amendment because doctrinal cases mostly involved white parties. Davis was the first to draw out the latent connection and influence of race to seminal Supreme Court decisions regarding family liberty.
The work of these and many other scholars illustrates that when race is not considered as part of the story and as a relevant factor in legal analysis, racial myopia persists. This lack of accounting for race may not proceed from malignant intentions, but it is nonetheless a choice. For example, Professor Melissa Murray addresses the absence of illegitimacy in constitutional-law courses, even though it is a central part of constitutional jurisprudence and has been regarded as a quasi-suspect classification for equal-protection purposes.13 She argues that the casebook content sidelines this important topic because of “the liminal status of nonmarriage and nonmarital families in law and society more generally.”14 She highlights the ways that race and gender intersect with the recognition of illegitimacy discrimination and “the law’s liberalization of the legal impediments that traditionally have been associated with illegitimacy.”15 And she notes “that legal education can be a site” for inadvertently “reproducing and re-entrenching . . . various forms of inequality.”16
In addition to the racial imbalance that exists within legal pedagogy, inequities are often reiterated through the publication and recognition of scholarship. The topics researched and published in high-ranking journals often dictate which cases are viewed as seminal and included in casebooks, as well as which topics are considered significant in the discipline of law. The number of citations to a scholar’s publications is used as the basis for a method to rank law professors’ prominence in legal academia.17 The latest ranking only has two women among the top fifty scholars18 and only two men of color.19 Among the top-ranked family law scholars, which are comprised of mostly women, there is only one woman of color.20 Legal scholars of color have noted how their scholarship that focuses on race or falls outside of the normative discourse has been excluded from certain areas of the law.21 Many female scholars of color write about race and the law, along with other identity-related areas such as gender, sexual orientation, and socioeconomic status.22 Racial myopia in legal scholarship occurs when white scholars fail to include the voice and legal analysis of scholars of color regarding normative topics, like family law, where race and its attendant bias affect how laws are proposed, written, or interpreted. The failure to cite research by scholars of color means that many of the critiques of law and policies that negatively impact or exclude people of color are missing from the dialogue or analysis within “mainstream” scholarship.23 Scholar Richard Delgado pointedly notes:
Despite the potential bias of mainstream scholarship, it might be argued that law review writing is basically harmless . . . . The game is not harmless. Courts do cite law review articles; judges, even when they do not rely on an article expressly, may still read and be informed by it. What courts do clearly matters in our society. Moreover, what law professors say in their elegant articles contributes to a legal climate, a culture. Their ideas are read and discussed by legislators, political scientists, and their own students. They affect what goes on in courts, law classrooms, and legislative chambers. Ideologies—perspectives, ways of looking at the world—are powerful. They limit discourse. They also enable the dominant class to maintain and justify its own ascendancy. Law professors at the top universities are part of this dominant class, and their writings contribute to the ideologies that class creates and subscribes to. These writings . . . have clout . . . . [T]here is a second scholarly tradition . . . that . . . consists of the exclusion of minority writing about key issues of race law, and . . . this exclusion does matter; the tradition causes bluntings, skewings, and omissions in the literature dealing with race, racism, and American law.24
Racial myopia in legal scholarship results in a host of inequities, including but not limited to: failure to consider the racial implications of a proposed law or policy; incomplete presentation and analysis of past and current laws; exclusion of the legal situations and dilemmas faced by people of color that impact their case and life outcomes; and exclusionary laws and policies that prevent people of color from acquiring meaningful access to justice and tangible assets such as employment, property, and tax benefits.
Racial myopia can also apply to an area of law, such as elder law, where there has not been much research on how race impacts old age. The Article notes that family law has a blinkered focus on the dependency of minor children, obscuring the significant dependency needs of older adults.25 Caregiving for both vulnerable groups must be addressed; in fact, children and elders are on different ends of the same spectrum of the universal vulnerable subject.26 From a racial and cultural perspective, minor children and older adults, such as grandparents, are at the center of the family circle, each an integral member who teaches, nurtures, and gives life to the other.27 In spite of their cultural significance, young and older family members of color experience the concept of “aged racism.”28 Family law scholar Alexander A. Boni-Saenz coined this term to identify “a distinct species of systemic racism that is characterized by its intersection with age.”29 More than just ageism and racism added together, aged racism “is the interaction of age, race, and their corresponding social structures that produces . . . unique forms of racial subordination . . . . It can affect all ages, but it is most likely to manifest . . . chiefly but not exclusively at the earliest and latest life stages.”30 It is a form of inequality that grows over the course of a lifetime, producing cumulative effects and race-based disadvantages as individuals age.31 The Article aptly recounts the statistical disparities of health, marriage, income, residential status, and life expectancy between older African Americans, Latinos, Asians, and whites.32 It further notes that these structural inequities “shape family formation in the last third of life.”33 However, in order to effectively address the disparities caused by unequal opportunities across the span of a lifetime, there must be a more extensive analysis of the reforms to family formation and familial caregiving.
A wholesale realignment of family law requires that the blinders that have previously hampered scholars, practitioners, and judges from analyzing race within the canon and practice of law be removed. Four basic questions can address racial myopia in law. First, has there been an active inquiry regarding how race factors into the identification and structure of the legal problem or issue? Second, is there a racially inclusive legal history or background of the problem, rule, or issue? Third, does the analysis effectively unpack and investigate the problem or issue from a racially inclusive perspective? Finally, do the proposed solutions either negatively or positively impact persons of different racial backgrounds? These questions provide a framework that prevents race from being situated within legal scholarship as an add-on, or as a topic deemed “beyond the scope” of a piece. Dismantling structural inequities of race, class, and gender is a tall order. There are overlapping webs of racially discriminatory laws that have caused these inequities, and there will need to be overlapping legal reforms and policies to address them. These four questions prevent the default position of a case or scholarly inquiry from being centered on whiteness and effectively expand the lens with which laws and policies can be examined (and they also conveniently align with IRAC34).
II. structural inequities in family law
Family structure and identity are two core tenets of the family law canon, primarily because the definition of a legal family and the role a person plays within a family unit are what make families vital as social institutions. Across the spectrum of family law, the structure and identity of the American family are (still) based upon a middle-class, white, heterosexual unit, with the mother as primary caregiver of the children and other family members in need of care. Racial myopia in family law exists as a result of the normative adherence to how families have been either historically recognized or ignored by court systems. This bias in viewing certain people as the standard group to whom the law applies is often implicit and “baked in” to how legislators, scholars, practitioners, and judges view family law. Stakeholders note the difference in how families operate and live by citing disparities between rates of marriage, types of parenting, health conditions, and accumulation of wealth. However, they do not broach deeper structural problems related to racial equity and justice. One reason is that the information and analysis necessary to proffer inclusive solutions are missing from the dialogue. This Response argues that the foundation of the American family structure should both encompass the full history of how families have existed and align with the current identity of family groups. Meaningful inclusion of race and its consequences within the U.S. legal system is critical to family law reform.
This Part is comprised of two Sections that offer both fundamental and more specific critiques regarding the second and third core commitments of Family Law for the One-Hundred-Year Life. It also addresses the first two proposed questions at the end of Part I regarding how to combat racial myopia in law. Structuring a family of choice centered on caregiving rather than marriage is not a new approach to family formation. It is very similar to the informal kinship network that African Americans have utilized since the time of slavery. Historically, this kinship network has struggled to obtain both legal recognition and passage of federal and state laws that support rather than penalize this type of family arrangement. The presentation of alternative family structures as novel fails to give credit to African American history and culture. The authors’ blinders prevent them from recognizing the African American kinship system as foundational to the concept of nonmarriage and opting in and out of family bonds and duties. This is both a scholarly and practical flaw. Without additional public-policy and legislative changes, the Article’s proposed reforms have a limited reach to address the disproportionate life measures that have afflicted African American and other minority families. Second, the Article fails to acknowledge the diverse and distinct socio-legal identities and family structures of different racial groups—African Americans, Latin Americans, Asian Americans, and Native Americans, as well as increasing numbers of multiracial Americans. Addressing this gap would help instantiate a distinct pivot in how family law is both taught and practiced. Racial identities and family structure are often missing from the normative presentation of the family, and if they are included, it is mostly via perfunctory statements that tend to highlight stereotypes about poor communities of color.35 Ultimately, this Part demonstrates that the Article falls short of achieving two of its three principles: autonomy and equity.
A. Kinship Networks: Legal Recognition and Structural Inequities
Family Law for the One-Hundred-Year Life asserts that there should be more flexibility in structuring family units to balance the needs of individuals who will grow old and live longer.36 This suggested type of structure is not necessarily new. It is very similar to the African American kinship networks that have existed in the United States since the time of slavery. Domestic networks are, in fact, the subject of anthropologist Carol B. Stack’s award-winning books, All Our Kin and Call to Home.37 The kinship system, a West African tradition of communal care, endured in Black38 communities to help their members survive financial and social hardships suffered in the wake of emancipation.39 These types of families included friends, informally adopted children, fictive or quasi-kin, and influential community elders.40 The obligations within kinship networks worked both forward and backward, meaning kin were responsible for the care and protection of children and elders.41 Because of the forced separation of families during slavery and following emancipation, kinship networks remain a strong part of how African Americans navigate life, particularly in the South.42 One of the important functions of the kinship family system is the sense of identity and shared belonging among relatives that enhances social solidarity.43
African American families have a lived experience of being denied family autonomy and freedom. However, they fought for liberty to be together and to have legal ties to one another.44 The law that applied to African American families for over three centuries “inverted concepts of human dignity, citizenship, and natural law,”45 and in so doing, forged a strong value of community over independence. In all likelihood, the majority of African American families value broadening their social circle and intimate ties.
Furthermore, the multigenerational family has been a buffer and foundation for the many strides of individual family members of minorities and immigrants in the United States.46 Today, a higher number of young adults ages twenty-five to thirty-four are living with their parents.47 As researcher Richard Fry has noted, “[m]ultigenerational living . . . is a safety valve . . . [since] if they were not in multigenerational families, [young adults’] poverty rate would be much higher.”48 Young men comprise the majority of young adults living with their parents or grandparents.49 An increase in the numbers of Hispanic and Asian families within the United States is another reason that multigenerational households are on the rise.50 It is “a cultural norm for young adults to continue living with their parents or older family members” in these racial and ethnic groups.51 There is also a reverse-boomerang effect occurring where older “parents [are not] waiting for retirement or urgent healthcare needs to move in with adult children,” as “changing attitudes about family life, high housing costs and challenges in finding affordable child care” are motivating the move to pool resources and share bills and space.52 Another recent national study found that “[a] third of U.S. adults in multigenerational households say caregiving is a major reason for their living arrangements, including 25% who cite adult caregiving and 12% who cite child care.”53 Other key findings include that the majority of adults in these types of households have a positive experience, and “[u]pper-income adults are less likely than those with lower or middle incomes to cite caregiving as a reason for living in a multigenerational household.”54
The Article does acknowledge the higher numbers of Black women, as compared to white women, who are cared for by family members and people outside of their families, as well as those who are elder orphans.55 It also notes higher rates of poverty, health disparities, and the need for long-term services and support among Black elders. A deeper analysis of African American family structure would further support the Article’s argument that there should be a conceptual shift in how laws govern family formation and family support. The multigenerational household persists in communities of color out of financial necessity as well as emotional support. However, state actors have maligned the domestic networks of Black families, often led by women. For example, Senator Daniel Moynihan mischaracterized the supportive kinship system as a “tangle of pathology.”56 Moynihan raised an alarm regarding the number of single mothers on welfare with illegitimate children in the Black community during the mid-1960s, and set forth to establish a stable family structure for the Black family.57 While Moynihan did squarely situate many of the issues faced by Black families as rooted in racism and the aftermath of slavery, he presented racial inequality in terms that blamed the Black family structure.58 His analysis of the structure of Black families, along with the government’s complete failure to examine why Black families lived and operated this way, influenced the current iteration of punitive federal and state family-regulation laws for generations.59 Public-school funding policies grounded in property taxes that resulted in poor, unequal schools in poor neighborhoods, neighborhood redlining by banks, and exclusionary zoning laws were some of the local practices that the Moynihan Report was used to support.60 The cumulative effects of these policies and laws are among the reasons why Black elders are more likely to be poor and have fewer assets to pass down to family members than their white counterparts.61 Failure to acknowledge the importance of African American kinship networks as a precursor and exemplar for the Article’s family registration reforms does not acknowledge or credit how Black families have always lived. This failure also results in a missing analysis regarding the tension between freedom of choice for kinship families and the search for equality within the family law system.62 As Section II.B discusses, inclusion of how race influenced family structure and identity allows diverse minority groups to be seen in the law.
The Article also acknowledges the fact that in the post-Reconstruction era, some African American families suffered negative repercussions from being forced to marry.63 While this example does show how law has historically failed to offer Black families autonomy in family formation, it only focuses on marriage. Many scholars have noted the various other ways by which Black families have been denied family integrity in forming and maintaining their social unit.64 Applying a critical-race feminist perspective, the Article’s argument would be strengthened by analyzing how African American families endured an extralegal existence while illustrating how family and friends lived together and supported one another. In light of how African American families established an informal structure for their families, some families might favor the proposed forms because they would enable them to legally solidify the social affections established between nonbiological dependents and close friends.
On the other hand, some African Americans may distrust the Article’s proposed family law forms because of how laws have historically harmed African American families. The Article’s lack of an analysis of race and family structure is not only problematic as a matter of legal scholarship, but also calls the practical value of its proposed family law forms into question. For example, comparisons have been made between apprenticeship laws that separated Black parents from their children after emancipation and modern child-welfare laws that remove disproportionate numbers of Black children from their parents and extended family.65 Forms that could establish legal ties and rights with adult family members who were wrongfully taken from the care of their birth family might exacerbate, rather than heal, intimate wounds caused by state interventions. How would these nuances be addressed? If family law were to shift to a supportive paradigm for all adults rather than a punitive one for Black families, it could, in theory, address some of the structural inequities built into the current family law framework. As mentioned in the Article, other laws would be implicated by the use of the forms.66 These complexities must be recognized because they reflect the realities that exist for a significant number of African American families today. Moreover, Black families may be more invested in reforming other laws they perceive to be more harmful to them than in securing legal recognition of their kinship network, a point I explore in greater detail in the next Part.67
While the Article consistently notes the disparate statistics for aging persons of color and the fact that structural inequality exists,68 its assertion that the new mechanisms it proposes allow for equitable family formation is not necessarily true. The Article fails to address the inequities that exist for Black families and how laws have been used as tools to inhibit and undermine their growth.69 Getting to the root of structural inequality requires more than recognizing that disparities exist for Black people in caregiving, health, and wealth. The Article deftly notes the low rates of marriage, accumulation of assets, and individual well-being among Blacks,70 but it does not analyze how the reasons for these inequities might influence the Article’s proposed reforms. The primary reason the Article is unable to address the reason for the inequities is because it does not engage with the literature that breaks down the relationship between the law and the status of Blacks as family members within a larger group of disenfranchised people. Without unpacking the attendant issues to examine whether the solution offered meets the needs of those who have been excluded from and harmed by family law, the Article falls short on its goals for addressing its second principle of equity.
Unpacking the structural inequalities that exist for families requires a deeper inquiry into how families became so stratified by class in the first place. This varies among different racial, ethnic, and sovereign groups, as the law has operated in many ways to subvert the economic and political progress of the diverse people who comprise America.71 For example, the Article asserts that civil unions were the first family-registration systems in the United States. However, registration of family groups originated with the Freedmen’s Bureau, a federal administrative organization comprised of Union military commissioners who performed and issued marriage certificates for thousands of formerly enslaved Black couples living in the South after the Civil War.72 The commissioners registered each couple they married throughout the South, sometimes recording personal information about the couple, including the color of the persons marrying and their parents, the time period they lived with a former partner, the reason for the separation with the prior partners, and the number of children they had with the previous partner.73 This historical fact presents a dichotomy in how Black nonmarital families were treated by the federal government.74 On the one hand, Black people desired legal recognition of their marriages and parent-child relationships. On the other hand, there were some Black couples who did not wish to marry the person they were bound to at the time of emancipation, but instead wished to be single or seek out a prior partner who was sold or sent away by a slave owner. Marriages entered into during slavery were not recognized, nor were the children of those extralegal unions.75 This effectively meant that children born during slavery could not inherit assets from their parents unless their parents married after emancipation and the state where they lived passed a retroactive law recognizing children from that marriage.76 This denial of rights between parent and child by state courts drove a wedge between Black family members and prevented the passage of wealth from one generation to the next.
The takeaway here is that Black families have struggled and continue to struggle with maintaining legal family ties. Informal kinship ties have existed for centuries, albeit unrecognized by the law. What incentive would Black families with very few assets have to utilize the Article’s proposed family forms? Research shows that “the racial wealth gap remains the largest of the economic gaps between Black and white Americans,” with a white-to-Black per capita wealth ratio of six to one.77 In addition, “Black households hold nearly two thirds of their wealth in housing and very little in equity.”78 While overall housing wealth has appreciated since 1950, “stock equity has appreciated by five times as much,” which has “led to disproportionate capital gains for the wealthiest Americans, a group that is almost exclusively white.”79 The aspects of the Article’s proposal that focus on greater financial flexibility would not be of help to citizens of color who do not have the type of assets that white citizens do. Opting in or out of financial rights could actually cause a rift within these citizens’ informal kinship systems. While decentering marriage may be a welcome change in the law, the autonomy that the reforms assert as an advantage may be a feature that some families that value community will not appreciate.
B. American Family Identity: A Multiracial and Diverse Group
One of the Article’s significant contributions is the way in which it calls attention to wide age diversity within the family and sheds light on the shortcomings of current family law in addressing the legal needs of an aging population. There are a few critical points of distinction among generations that could strengthen the argument for the Article’s solution. In addition, more explicit consideration of poor families of all racial groups is necessary to meet the Article’s goal of addressing equity and efficiency needs.
First, there are simultaneous seismic changes occurring within younger generations, specifically millennials, that have now eclipsed the baby-boomer generation in number.80 A recent study reveals that millennials are marrying less than the generation before (Generation X), but still having children outside of marriage.81 Among millennials, there are also “significant differences in the share living in a family of their own by race, ethnicity, and educational attainment.”82 “Black millennials are the least likely to live in a family,”83 which coincides with the similar trend noted in the Article about Black older women.84 Black millennials are also more likely than other racial and ethnic groups to live with a child and no spouse,85 which also aligns with the likelihood of a Black grandmother raising a grandchild without a spouse. On the other hand, “[m]illennials with less than a high school diploma are more likely than those with more education to live in a family.”86
A focus on current family-formation trends regarding aging must be reconciled with the racial inequities within family law and related areas of law. The racial myopia that family law struggles to confront often conflates race and poverty.87 The two are not synonymous. Many middle- and upper-class Black families structure themselves around marriage and the normative ideals it promotes.88 Although their education and income are more closely aligned with white middle-class families, their ability to transfer intergenerational wealth is still compromised by the effects of racial discrimination over time.89
One area of inequity highlighted in the Article but not addressed by its new approach to family formation is finances. For example, the gap between the wealth that many older whites have accumulated, which will help sustain them later in life, starkly contrasts with the wealth of older African Americans.90 Many poor African American families and other minority families are often not arguing over estate issues after an elder dies; rather, they are struggling to pay for debt associated with caregiving that will not be extinguished by a life-insurance policy or retirement fund.91 While no one academic piece can cover everything, greater consideration of the issues poor families face in dealing with aging relatives is critical to creating legal reforms that meet families where they are. For example, a 2021 investigation by U.S. News & World Report profiled a retired Black woman living off social security benefits and taking care of her mother in her home, who found herself at the mercy of Medicaid estate recovery.92 When her mother died, the woman inherited the home she had been living in for decades. The only issue was that federal law mandates that the government seek reimbursement for the long-term care services from the estate of the decedent. In situations where Medicaid is the only way to pay for long-term care services, families who depend on Social Security and other government benefits can never take full control of their estate.
Part of the rationale set forth for the Article’s proposed reforms is to allow older citizens to establish intimate relationships without the simultaneous legal rights that come with marriage.93 One example given is that an older adult who marries and does not wish to leave their estate to their spouse might be thwarted by inheritance laws that give each spouse an elective share in the other’s estate.94 This example reflects the economic position of a white middle- or upper-class person. Considering the statistics set forth earlier in the Article,95 the dilemma of an older Black woman may very well not be to whom she wants to leave her estate. Rather, her concern may be whether she has enough money to pay for long-term services and support, and whether she is burdening her children or other relatives because of her daily needs.96 The Article’s proposals, while novel, would not likely be of any help to many older Black adults.97
By 2050, Hispanics will account for twenty percent of all Americans age sixty-five or older.98 They tend to live longer, but they are not as “successful” as older white Americans as measured by “traditional metrics” like cognitive health and wealth.99 A 2016 study that allowed older adults to select their own standards for life satisfaction and successful aging revealed that Hispanic older adults, “particularly immigrants, are more satisfied with their lives than any other group of older Americans, including Whites.”100 Even though the older Hispanic immigrants in the study had “worse health, and fewer social and economic resources than White elders,” they tended to have better health outcomes later in life.101 As the study noted, one explanation for this seeming “paradox” may be “[s]trong family support,” since Hispanic elders lived with their adult children more than any other group in the study. Living with children prompted higher life satisfaction for older Hispanics, but lower satisfaction for elder whites.102 The cultural value of living with and caring for extended family persists in many Latino cultures.103 It is questionable whether older Hispanic individuals will find the Article’s proposed reforms useful since they are more likely to maintain existing household relationships with their family rather than create new relationships later in life.
Asian American elders are not doing as well as elders of other races as they age.104 A study revealed that they have “significantly lower life satisfaction and receive less emotional support than their peers of other races.”105 Social and cultural factors impact aging for people from marginalized communities. Health-care facilities are not adequate to meet the needs of the Asian community because not “many mental health providers . . . can accommodate the language needs of Asian American elders, more than half of whom have limited English proficiency.”106 There is also fear of anti-Asian violence that results in Asian older adults not leaving their homes.107 Though they are the least likely to live alone out of Americans age fifty and older, their poverty rates are much higher than other elders.108 It will be difficult to determine if the Article’s proposal will meet the needs of the elder Asian American community. For example, will the forms be translated into the most common Asian languages, particularly for Asian Pacific Islanders and southeast Asians? Will Asian American elders try to use the forms to secure family caretakers as they age or band together with similarly situated peer to helps share housing expenses and caregiving? For those without children to care for them and limited resources, their basic needs may be more important than the proposed family registration system.
III. family law autonomy, the cost of efficiency & reckoning with race
In addition to the proposed family registration system, the Article supports a reform agenda for family caregiving, with a focus on alleviating the burden on family members who provide unpaid care for older adults. The suggested reforms cover revisions to federal law, including Social Security, the Family and Medical Leave Act, expansion of Medicaid and Medicare coverage, and tax credits, as well as specific state reforms such as facilitating intrafamily care contracts and “changes to zoning laws that prohibit ‘in-law’ apartments.”109 Most of these reforms would benefit elders of color and are the subjects of prior scholarly publications.110 These proposed reforms are acknowledged by the Article to be politically unlikely but are mentioned nevertheless as potential solutions without a distinct pathway forward for government reform.
Part III considers how the Article’s failure to deal with the way that structural racial inequities in law result in the inability of the proposed changes to meet the first and third core commitments. The Article’s proposed family registration system does not consider the difficulties faced by some minorities and poor families when they use pro se forms in court, nor does it address how laws and government benefits that are contingent upon marriage should change. The creation of forms for individuals to opt in or out of the normative family structure furthers the reach of “paper courts,” thus raising the alarm for due-process and equity concerns for low-income and minority families. Furthermore, the proposed registration system does not consider the implications of other existing laws, such as federal immigration laws and the Family Medical Leave Act, which are contingent on a specific form of family: marriage. Many poor and minority families may be unsure of how the new form of family will operate alongside other laws, and dealing with an unknown will disincentivize them from utilizing the family registration system. Part III illustrates how the Article does not hit the mark on its first and third principles: autonomy and efficiency. It concludes with suggestions for the legal academy to wrestle with racial myopia and the academy’s role in shaping the law.
A. Family Law Forms: Utility and True Access to Justice
The Article provides a prescriptive solution for couples and family groups to form legal relationships through family-group registration with the state.111 A marital menu will be available for couples who desire marriage and want to customize their commitments, and persons who do not wish to enter marriage will have the option of entering family commitments by choosing from a list of rights and duties. Effectively, the forms will serve as a type of prenuptial agreement whereby engaged couples can opt out of the rights and obligations that normally accompany marriage. On the flip side, persons who do not typically have the financial means to hire attorneys would have access to courts via premade forms that allow for family formation outside of a marital dyad.
The use of forms in family law cases is already quite common because of the number of pro se litigants. At least one party in family court appears pro se almost eighty percent of the time.112 Typically, most pro se litigants are indigent and cannot afford to hire an attorney.113 Forms are touted as a way of improving access to justice.114 However, there are several reasons to question whether the Article’s envisioned forms will accomplish the authors’ stated goals.
The Article asserts that its proposed registration system risks replicating inequity because low-income couples are already less likely to formalize their relationships.115 It emphasizes that the list of options for family relationships should be clear and straightforward so that the forms can be executed without consulting an attorney. The proposed family law registration provides that states could restrict the forms for use by older adults only due to possible concerns about how these types of relationship options might yield unintended consequences for younger adults.116 This could result in another instance of aged racism because if older adults are the only group that can take advantage of the family registration system, and most of the people who could benefit from the options are persons with accumulated wealth, this reform will disproportionately benefit whites.
Scholars disagree with the widespread use of forms in court.117 Forms are appealing at face value for granting “access” to poor people, but pro se litigants still encounter problems in court without further assistance. There are also several major issues with the use of forms to register a unique family marital unit separate from the marital dyad. First, empirical studies show that the average American is underinformed as to the contours of family law.118 One study concluded that “people do not fully understand the consequences of marriage on their assets and debts.”119 There is also great misunderstanding about creditors’ rights during marriage and after divorce.120 This study found that “the difference between what people think is the law and what it actually is has important implications,” since “people cannot plan their family life effectively if they do not understand the legal defaults . . . [and] [w]ithout knowing their rights, people cannot stand up for them.”121
Further, forms require detailed explanation to be effective. Often laypersons cannot understand them because of discrepancies in literacy rates and the often-complex terminology they use.122 Fifty-four percent of U.S. adults have a literacy below sixth-grade level, and twenty-one percent of adults are illiterate.123 Taken together, a large percentage of adults would not be able to truly understand what they are reading on most family law forms. Given these literacy levels and the high incidence of pro se litigants in family court, it is clear that a significant percentage of the public does not understand how their family law rights and benefits operate.
Legal clinicians who observe the impact of legal forms in family law first-hand have raised another issue: due process for those who cannot afford to hire an attorney to explain the forms.124 The term “paper courts” refers to types of forms that effectively take the place of a court order and eliminate the judge’s duty to adjudicate a matter.125 For example, the voluntary acknowledgment of paternity (VAP or AOP) is such a form because it establishes parenthood for nonmarital fathers without requiring the parties to go to an actual court.126 These forms are easy to sign (and have legal effect), but they are difficult to rescind or dissolve.127 Professor Tianna N. Gibbs highlights several causes for concern regarding the use of paper courts.128 Among these are the forms’ frequent failure to “ensure that participants understand the legal consequences,” the risk that they are executed without informed consent, and the lack of sufficient procedural due process.129 These are all critical issues that have not been reconciled by the family court system. Yet AOPs are lauded nonetheless as efficient tools for nonmarital families to establish parenthood.130 It has also been noted that there are ethical concerns regarding state supreme court promulgation of family law forms, which pushes the boundaries of the judge’s role and raises the potential for conflicts of interest.131
The AOP is typically accompanied by a short brochure and read out loud by a certified hospital employee after a child is born.132 Nonlawyers are relied upon to deliver critical information about complex legal issues regarding custody, child support, and government benefits, even though they are unable to answer legal questions.133 There are other tradeoffs for the persons considering whether to sign the form as well—lack of genetic testing, family expectations and pressure, and a short window to rescind the decision, to name a few. While the family court system does not track the number of fathers who seek to rescind or dispute their execution of a voluntary AOP, it is estimated that as many as around thirty percent are not the child’s biological father.134 Some of these same issues will likely arise for persons seeking to utilize the Article’s proposed family law forms, but the Article does not adequately address whether states should require an official court staff person or attorney to explain how the forms work, what familial rights are at stake, or what process families would use to dissolve any nonmarital obligations. These details are important because they make a difference regarding notice to family members, comprehension of the legal effect of the forms, and unintended consequences that cannot be undone after a person becomes incapacitated or dies.
The analysis of how forms would be interpreted and possibly utilized would be strengthened by the analysis of how other forms used in family court have impacted Black families. Unfortunately, there are not many studies that could assist lawmakers or scholars in definitively determining the forms’ rates of use by Black families and the subsequent outcome of the cases.135 A study of limited legal assistance conducted by Alaska Legal Services Corporation revealed that all African American respondents reported negative outcomes.136 However, there was such a small number among the group that further research would be necessary to clarify the issue. The study did reveal, though, that “the aid that respondents found most useful was hands-on[ ]help in filling out the forms.”137 By contrast, “[f]or many respondents, general legal advice about what to do and what forms to fill out was only minimally helpful.”138 Respondents noted that the forms “were complicated and involved legal jargon that they could not understand.”139 The results of this study reinforce the problems encountered by most people faced with using forms to access the court system.
Another study that could inform whether the Article’s proposed reforms meet the mark for equity is a 2018 piece of socio-legal scholarship by Professors Tonya L. Brito, David H. Pate, Jr., and Jia-Hui Stephanie Wong investigating “how attorney representation and other more limited forms of legal assistance affect civil court proceedings for low-income litigants.”140 This study examined the experiences of low-income fathers in the child support system in two states.141 While it did not assess elders’ relationships or caregiving needs, it is still instructive for its findings on how lawyers and the judiciary treated unrepresented noncustodial parents. Fathers of color, predominately Black fathers, comprise a large percent of this group. While the study did not explicitly set out to “examine questions of race within the context of studying access to civil justice, the importance of race and racial inequality . . . [nevertheless] became apparent.”142 The study found that “race is and is not present” in court hearings, as legal actors’ purportedly race-neutral approaches did not mask the racialized consequences of their actions.143
Many unemployed and underemployed Black fathers testified about barriers to obtaining jobs, including discriminatory hiring and criminal records or liens.144 Research conducted across the United States substantiated their stories, showing marked differences between treatment of Black applicants and white applicants in the job market.145 Included among “intersecting practices that undermine [Black fathers’] efforts to secure long-term, stable employment” were “outright racial exclusion,” preference for migrant farm workers over Black applicants, exploitative practices of temporary agencies, and employer relocation to the suburbs for those fathers without transportation.146 The legal actors involved in these hearings, most of whom were white, dismissed the racial disparities facing poor Black fathers, rendering their plight invisible.147 The colorblind approach in these cases highlighted “how assumptions about job availability for low-income fathers are premised on a” white normative standard.148 The study critiqued the adjudication of child-support cases, noting that they showed a “judicial myopia with respect to racial context that presumes a level present-day social and economic playing field.”149
This study illustrates the pervasiveness of racial myopia in family law. As part of the study, judges, family court commissioners, and lawyers were asked “to identify the impediments that kept fathers from finding jobs,” and “[i]n response, they “pointed to other contributing factors and consistently recite[d] a series of well-known and documented barriers to employment experienced by low-income men without acknowledging their links to race.”150 The study critiqued how there was no discussion about how the barriers were “connected to systems that disadvantage Blacks.”151 This is similar to how the Article did not sufficiently analyze potential barriers for elders of color to its proposed family registration system. The disparities highlighted in the background section of the Article must be connected to how structural racism may exclude Black families from the benefits of the new system. For example, the Article refers to the structure of other proposed registration systems and the economic and healthcare benefits that nonmarriage will confer to elder individuals and their chosen family members.152 The tax and social security benefits of the opt-in/opt-out would need to be clearly explained, and the benefits for property distribution and inheritance may be irrelevant for poor elders and elders of color who have few assets to distribute to their family.
Finally, the voluntary opt-in and opt-out mechanisms set forth in the Article do not account for the ways in which state legal systems have engineered generational poverty and distrust for certain families. Take some findings from a recent report: “Only 28% of low-income Americans believe that people like them are treated fairly in the U.S. civil legal system.”153 Further, only 35% of low-income Americans sought legal help from lawyers to help fill out legal forms and documents, although 74% of this same group experienced one or more civil legal problems in the past year.154 This same group “did not receive any or enough legal help in the past year” for 92% of problems that have had a substantial impact on them.155 Over one quarter had experienced at least one problem related to family matters or personal safety, particularly in households with children under twelve years old.156 These statistics are vital in analyzing the likelihood that the authors’ proposed forms will be used by Americans of all income levels. Equity cannot be achieved if low-income Americans think legal representation is inaccessible.
B. Clarion Call
This clarion call aligns with the core commitments of the Article, seeking to rally scholars who have an understanding of the role of structural racism in law. Many are aware of how race operates to disadvantage various groups, but research and scholarship are often conducted using whiteness as the default standard. Awareness is the first step, but there must be more collective brainstorming to activate the concept of justice and liberty for all. On behalf of many scholars of color who have toiled despite a myriad of obstacles to secure a place in academia, this clarion call challenges the legal academy to use the law to transform lives.
Scholars of color have written about the intersection of race and every area of law, from corporate to patent to family law. Much of their scholarship has been personal in that they have observed or lived the very bias about which they write, and even if it has not impacted them personally, it has impacted their race in ways that are deeper than just skin color or DNA. It is soul work. Their research and much of their scholarship could help move society closer to achieving equity for different racial groups. Meaningful legal dialogue that wrestles to find solutions that address structural inequities requires including the nuanced and distinct voices of many different scholars of color who have made vital evaluations regarding how law is made, interpreted, and practiced, as well as the negative or positive implications of legal policies on people of color. In order for law to reach its highest calling, we simply must do more to recognize and include scholars of color at the proverbial table and listen and discuss their ideas within mainstream scholarship.
First, use the framework provided in Part I to develop a new lens to incorporate race into your query. Realigning your perspective to address racial myopia in law requires four basic explorations. First, has there been an active inquiry regarding how race factors into the identification and structure of the legal problem or issue? Second, is there a racially inclusive legal history or background of the problem, rule, or issue? Third, does the analysis effectively unpack and investigate the problem or issue from a racially inclusive perspective? Finally, do the proposed solutions either negatively or positively impact persons of different racial backgrounds?
Second, conduct a due-diligence search of the scholars of color in your field and seek to collaborate with them on a research project. Centering the needs of the most marginalized will require adopting a lens or perspective that some white scholars lack that scholars of color can add. It is likely that there are more than a few law-review articles that relate to your thesis or premise that should be cited in your work. Invite scholars of color to cowrite articles, essays, or books about prominent issues in your field and be intentional about deliberations to address fundamental inequities within the law. While there are no silver bullets, raising questions and debating the merits or feasibility of local, state, and federal possibilities for legal change is vital to moving the law forward. One example of such a duo is top-cited dean and scholar Erwin Chemerinsky and leading health law scholar Michele Goodwin, who have cowritten four articles and two book reviews on abortion, compulsory-vaccination laws, immigration and racism, and civil liberties affected by the pandemic.157 Other pairs include Katie Eyer and Karen Tani, Olati Johnson and Kristen Underhill, David Horton and Andrea Cann Chandrasekher, and Solangel Maldonado and Jane Murphy.158
Third, remember that representation matters. African American family history, identity, and structure are an integral part of the American legal system, even though much of it is not taught in secondary schools or higher education. In considering how to reform the law, we need to consider how the law impacts diverse groups of people. Just as critical-race scholars Richard Delgado, Derrick Bell, and Mari Matsuda argued over thirty years ago, scholars of color possess a unique voice not found in traditional legal scholarship.159 Including the views and scholarship of diverse scholars forces deeper thought about the consequences of proposed laws and reforms, and can help yield different, more equitable solutions.
This Response challenges whether Family Law for the New Old Age actually addresses the structural inequities it claims as a core commitment. Racial myopia in family law is at the center of the critique. Structural inequities cannot be addressed by using white families as the normative identity for analyzing legal reforms of the aging population. The practical reforms set forth in the Article could have unintended consequences for the families that already face obstacles in family court and within the wider legal system. Race—as well as the scholarship that incorporates race into normative family structure and identity—must be critically considered as we propose new ways of creating family units. This Response calls for active engagement with the racial history surrounding American family structure and the laws utilized to support them in order to achieve the goal of adapting family law to address the needs and interests of older people.
Associate Dean for Research and Professor, SMU Dedman School of Law. Thank you to Melissa Murray, Lolita Buckner Inniss, Rose Cuison-Villazor, Sacha Coupet, Monika Erhman, and Carla Reyes for helpful comments and feedback.