Professor’s New Study Finds ALI Family Law Principles Have Small Impact

Lexington, VA • Thursday, April 02, 2009

Dramatic changes in the structure of the American family over the last few decades have been well documented. Dual-income couples, cohabiting couples with and without children, and same-sex couples with biological and adopted children have moved into the mainstream. This reality has created ever more complex legal problems involving child custody, spousal support and division of property when these relationships end.

Seeking to deal with the greater complexity of the American family, the American Law Institute (ALI) nine years ago adopted a set of principles to help the courts and state legislatures negotiate these breakups. The ALI's Principles of the Law of Family Dissolution were greeted with great fanfare, and many believed the Principles would have lasting impact on the fair and consistent application of family law across the diverse spectrum of the new American family.

But a recent study by Washington and Lee Law professor Robin Fretwell Wilson and coauthor Michael R. Clisham reveals that in the near decade after the release of the Principles, few cases, and even fewer states legislatures, have adopted any of the Principles' recommendations. In fact, in cases where the Principles are cited, they are most often used to support a conclusion the court would have reached anyway in their absence.  When courts grapple substantively with the Principles' recommendations, they reject those recommendations far more often than they accept them, by a ratio of 1.5 to 1. 

"The scant influence of the Principles over the span of 18 years since the project's inception stands in stark contrast with the ALI's Restatements of the Law in other areas, which have been wildly influential," says Wilson. "The findings of our study suggest that the ALI may need to refocus on its core mission of restating the law rather than urging judges and legislatures to take the law into uncharted territory."

The ALI is the most prestigious law reform body in the U.S., with an elite membership capped at 3000 judges, lawyers, and teachers from all areas of the U.S. and many foreign companies.  New members are selected based on professional achievement and demonstrated interest in improving the law. In fact, Wilson herself has just been elected to the ALI, joining several other W&L Law faculty who are already members, including law dean Rod Smolla and professors Doug Rendleman, Rick Kirgis, Margaret Howard, Tim Jost, Lyman Johnson, and Scott Sundby.

"I have been interested for years in the important work the ALI has done, both within family law and outside it,  and I am honored to join in the ALI's work going forward," adds Wilson. "I am especially excited to be a part of the ALI as they continue important work on non-profit organizations, another subject of scholarly interest for me."

Wilson and Clisham's new study, titled "American Law Institute Principles of the Law of Family Dissolution, Eight Years After Adoption: Guiding Principles or Obligatory Footnote?," was published last year in Family Law Quarterly. Assisting Wilson and Clisham with the research were W&L law students Rich Schlauch, Stephanie Hager, and Joe Mercer. Research librarian Caroline Osborne also played a key role in the data analysis.

Wilson will address the study's findings and her related research on de-facto parenting in an upcoming meeting of the National Association of Women Judges in Atlanta on April 3-5. Several hundred women judges from across the country attend the conference, which this year focuses on children and the law.

A specialist in Family Law and Health Law, Professor Wilson's research and teaching interests also include insurance and biomedical ethics. She is the editor of four volumes: Health Law and Bioethics: Cases in Context; Same-Sex Marriage and Religious Liberty: Emerging Conflicts; Reconceiving the Family: Critical Reflections on the American Law Institute's Principles of the Law of Family Dissolution; and the Handbook of Children, Culture & Violence. In 2007, she earned one of 10 "citizen lawmaker" awards presented by Del. Rob Bell, R-Albemarle County, for her research that led to a new Virginia state law prohibiting unauthorized pelvic exams by medical students.

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