Document Type

Article

Publication Date

4-1992

Abstract

On an occasion such as this, we are called to step back from our daily work to seek what Justice Holmes called a "liberal view" of our subject. Today, I propose to do so by exploring a function of family law that I believe is basic, that underlies much of family law, that resonates with the deepest purposes of culture but that is rarely addressed expressly-namely, what I call the "channelling function." As I will soon explain at length, in the channelling function the law recruits, builds, shapes, sustains; and promotes social institutions. My exploration of this topic will have several stages. First, I will defme what I mean by "channelling function" and try to convince you that, rightly or wrongly, for good or ill, it has played a .weighty role in family law. I will do so because I believe that our failure to recognize the function regularly causes courts and scholars to misunderstand the regulation of families· and the work of the law. In addi- tion, one of my purposes in this essay is to urge an appreciation of and deference to the complexity of the social and legal world in which we live. The temper of academic thought in recent decades has been to demonstrate the undoubted risks and deficiencies of social institutions. I believe it is now time to remind ourselves that in our painfully and implacably complicated world, there is another side of the ledgvr. In the second stage of my paper I will examine some of the factors that constrain the channelling function's effectiveness and moderate its attractions. I will try to show that the function's power is limited, that that power may be used both wisely and foolishly, and that its use exacts costs. Finally, I will seek to make my discussion of the channelling function more concrete by exploring a recent case-Michael H. v. Gerald D.-in channelling terms.

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