Document Type

Response or Comment

Publication Date

1995

Abstract

The law of the family is the law of the absurd. Law is a system of rules administered institutionally, and thus it must treat people categorically. When law regulates economic life, it finds people at arguably their most schematic, motivated-perhaps-by a relatively unitary conception of their interest pursued in relatively rational ways. But in family life, people are at their least schematic and at their most frustratingly human, various, idiosyncratic, irrational, and perverse, and the law's efforts to affect them are thus often quixotic. In Parents as Fiduciaries, 1 Professor Scott and Dean Scott strikingly and boldly deploy the conceptual vocabulary of the former kind of law to reinterpret the latter kind. The result-contrary to what one might expect given the awkwardness of the problem, but just as one might expect given the distinction of the authors-is an exceptionally engaging and provocative essay in the best tradition of legal scholarship. It is fair-minded, judicious, and sensible. It is a sober and steadying contribution to a flighty and faddish field, yet it is creative. It is doctrinally based, informed, and perceptive, yet it is also a large survey of causes. And in its crucial aspects, it is animated by the most needed kind of moral insights. Indeed, so absorbing have I found this article that I have abandoned my original plan to go off on a frolic of my own and have instead devoted this Commentary to examining it in some depth and detail. In a way, though, I have found this enterprise difficult, since I agree with so much of what the Scotts have set out to do. I hope, then, that my remarks may be accepted as a friendly amendment, amplifying a bit here, raising some questions there, and finally speculating about what efforts like the Scotts' portend for legal scholarship.


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