Book Review

Date01 December 2015
AuthorCHOO Han Teck LLB (Hons) (National University of Singapore), LLM (Cambridge); Judge of the Republic of Singapore. No matter how many communes anybody invents, the family always creeps back.[1]
Published date01 December 2015
Citation(2015) 27 SAcLJ 601

1 There are two basic truths about family law. The first is that happy families are not just all alike, they have less need for law than unhappy ones. The second follows the Tolstoyan axiom that every unhappy family is unhappy in its own way. Prof Hasday's exploration of the current canon in family law examines the bias and pitfalls that get in the way of legislative and judicial thinking. She also searches the important areas that are insufficiently noticed or regarded but are nonetheless significant and crucial if family law is to be properly understood and developed. In the first part of her book, she describes how by diverting family law's connection to other fields of law family law exceptionalism detracts from our understanding of family law itself. In the second part, she contends that the “common sense” approach to family law is inconsistent and contradictory and that, in turn, misrepresents the reality of family law by concentrating on marriage and parenthood. In the third part, she examines the areas that have been overlooked and missing from the current narrative. By “canon” she means “the dominant narratives, stories, examples, and ideas that judges, lawmakers, and (to a less crucial extent) commentators repeatedly invoke to describe and explain family law and its governing principles”.2

2 Prof Hasday begins by explaining the courts' inclination to localism as opposed to federalism. She points to the Supreme Court's decision in United States v Lopez3 in which the court struck down the Gun-Free School Zones Act of 19904 (which made it a crime to possess firearms near a school). A high school boy was charged for delivering an unloaded firearm and five cartridges in a school compound; a job he said he did for payment of US$40. Holding that Congress exceeded its commerce power in making this a federal crime, and that if Congress' interpretation was correct, it would have meant that Congress had the power to legislate on “family law” and “child-rearing”. Importantly, as Prof Hasday points out, “Lopez did not explain why congressional regulation of family law would be inappropriate”.5

3 Prof Hasday refers to two legislative enactments that demonstrate the prevailing exceptionalism attitude of the Supreme Court — the Violence against Women Act 1994,6 and the Defense of Marriage Act 19967— as examples of misguided anti-federalism in family law. In the former Act, the court acknowledged that there was undeniably a need to protect women from violence but the remedy proposed by the Act “could involve the courts in a whole host of domestic relations disputes”.8 Such disputes, it ruled, has “traditionally been reserved to state courts”.9 In the latter Act, the Supreme Court held that the Act had defined a spouse as a “person of the opposite sex”, this was therefore clearly a matter of family law that is within the province of the States and not Congress. Prof Hasday cited Senator Feinstein in saying that “[w]hether one accepts the idea of same-sex marriage or not is not the central issue here”.10 Prof Hasday explains that the issue was whether “we want to inject the Federal government into an area that has, for 200 years, been the exclusive purview of the States”.11

4 Prof Hasday contends that the Supreme Court was wrong to have categorised the two Acts as trespassers in state territory. She says that “federal family law is already far-reaching and well-established. In addition, federal family law is sometimes unavoidable given the demands of the federal...

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