Volume 88, Number 2

May 2013

Staging the Family

Clare Huntington

For many critical aspects of family life, all the world truly is a stage. When a parent scolds a child on the playground, all eyes turn to watch and judge. When an executive’s wife hosts a work party, the guests are witness to traditional gender roles. And when two fathers attend a back-to-school night for their child, other parents take note of this relatively new family configuration. Family is popularly considered intimate and personal, but in reality much of family life is lived in the public eye.

These performances of family and familial roles do not simply communicate messages to others. They are also central to the deep structure of family law. Drawing on sociological and feminist theory, this Article argues that iterated, everyday performances are performative—that is, they create and then maintain collective understandings of mother, father, child, and family itself. The law plays an integral role in this by imbuing the performances with legal salience to define the categories at the heart of family law. This Article terms this dynamic process “performative family law.”

Aspects of this mutually constitutive relationship between performance and family law are deeply troubling, raising significant concerns for core areas of doctrine, policy, and theory. First, family law’s prevailing approach to defining familial categories is normatively narrowing because legal actors tend to give effect only to traditional, dominant images of the family despite seismic demographic changes in family form. Second, the obscuring effects of the public face of the family often warp the policies designed to address family violence, most notably child sexual abuse. Finally, by ignoring the pressure of performance, scholarly debates over the public-private divide are incomplete and have failed to explain why the concept of family privacy retains such enormous appeal.

In response, this Article proposes a new framework for family law that decenters dominant performances and provides an alternative means to define familial categories and counter family violence. It is not possible or even desirable to eliminate performativity entirely, but it is important to resist its more troubling aspects. A denaturalizing framework promises a more pluralistic approach to the emerging demographic transformation of the family and deeper engagement with the variety of family life today.

The Broken Safety Net: A Study of Earned Income Tax Credit Recipients and a Proposal for Repair

Sara Sternberg Greene

The Earned Income Tax Credit (EITC) is the largest federal antipoverty program in the United States and garners almost universal bipartisan support from politicians, legal scholars, and other commentators. However, assessments of the EITC missed an imperative perspective: that of EITC recipients themselves. Past work relies on largely unconfirmed assumptions about the behaviors and needs of lowincome families. This Article provides a novel assessment of the EITC based on original data obtained directly from 194 EITC recipients through in-depth qualitative interviews. The findings are troubling: They show that while the EITC has important advantages over welfare, which it has largely replaced, it fails as a safety net for low-income families. The problem is that the EITC provides a large windfall to families only once per year, during tax refund season. However, low-income families are particularly vulnerable to financial shocks and instability. Not surprisingly, such events rarely coincide with tax refund season. Without a fix, the EITC leaves many families on the brink of financial collapse. In the years to come, many more low-income families may file for bankruptcy or become homeless. Despite this grim outlook, this Article suggests a straightforward and promising new way to distribute the EITC that maintains the program’s advantages while also providing a more secure safety net for low-income families in times of financial shock and instability.

Patent Misjoinder

David O. Taylor

The Leahy-Smith America Invents Act effectively repealed aspects of the Federal Rules of Civil Procedure by creating a new statutory section governing joinder of accused infringers and consolidation of actions for trial in most patent infringement cases. This new law codifies a substantial barrier to joinder and consolidation for trial. In so doing, it frustrates the promotion of liberal standards both for evaluating the sufficiency of pleadings and for evaluating the propriety of joinder of parties—two of the primary policies embraced by the drafters of the Federal Rules of Civil Procedure. Remarkably, Congress adopted the new statutory section despite the absence of any detailed scholarly analysis prior to its enactment regarding these issues, sparse legislative history analyzing perceived problems with the relevant Federal Rules of Civil Procedure, and the lack of any consideration of the new statutory section by the Supreme Court’s Advisory Committee on Civil Rules. This Article provides a comprehensive analysis of the reasons for the enactment of the new statutory section, the competing policies animating the Leahy-Smith America Invents Act and the Federal Rules of Civil Procedure, and the appropriate interpretation and application of the new law. Such analyses have, to date, been absent from the legal conversation.


Burford Abstention and Judicial Policymaking

Kade N. Olsen

The Supreme Court held in Burford v. Sun Oil Co. that federal courts, through an exercise of equitable discretion, could abstain from asserting subject matter jurisdiction over challenges to state administrative agency orders. Since Burford, the Court has failed to reconcile abstention with either Congress’s subject matter jurisdiction statutes or the Constitution, which both arguably require federal courts to exercise jurisdiction when the subject matter is proper. Instead of relying on equitable discretion, I believe federal courts can and should ground Burford abstention in constitutional and statutory restrictions on the types of power that federal courts may exert. Article III of the Constitution and the federal question, diversity, and removal jurisdiction statutes require federal courts to abstain from asserting jurisdiction when doing so would require federal courts to take nonadjudicative action.

Defining Recess Appointments Clause “Vacancies”

Amelia Frenkel

The Recess Appointments Clause gives the President the power to “fill up all Vacancies that may happen during the Recess of the Senate.” Throughout American history, the Clause has been the subject of intense constitutional focus, as well as political jockeying between the legislative and executive branches. The recess appointment of Richard Cordray as the first Director of the Consumer Financial Protection Bureau in January 2012 brought new attention to the issue, raising novel constitutional questions about the propriety of modern uses of the recess appointment power. This Note addresses the question of whether the President is constitutionally empowered to make recess appointments to newly created offices and concludes that he is not.