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BYU Law Review

Abstract

Even as the pandemic has both highlighted and compounded the challenges many U.S. families face in meeting their members’ basic needs, efforts to expand public subsidies for caretaking have gained little traction. Scholars have identified many historical and practical reasons for Americans’ entrenched skepticism toward the welfare state. Ideas matter, too, and this Article uncovers and critiques one that works to limit collective financial responsibility for families: the conviction that family support obligations must be legitimated through consent.

In family law, as in liberal political theory, consent works to reconcile state regulation with individual freedom. But because consent is a poor way to conceptualize relations of interdependence, consent-based ideas about what family members owe one another make family law doctrine less generous and justifiable than it could be. Such ideas also insulate citizens from financial obligations toward anyone’s family but their own.

Consent-based legitimation endures in part because “consent” can bear different meanings unless it is precisely defined – work that family law scholars have only begun to undertake. Contributing to that project, this Article develops a taxonomy that identifies the distinct roles consent plays in justifying family obligations. It then uses that taxonomy to analyze how uncritical consent-based reasoning contributes to an incoherent body of doctrine that naturalizes economic inequality within and between families.

To begin to address these problems, family law should incorporate additional principles beyond consent for justifying family support obligations. Adopting such a pluralist approach would allow family law to grapple with important normative questions directly and openly, contributing to more defensible (and potentially more egalitarian) doctrine. Recognizing what this Article calls “nonconsensual family obligations” is also the first step toward advocating for the collective responsibility to make the material inputs of family life available to all— rendering family support obligations both broader and more widely spread than we currently imagine them to be.

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