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23 Yale J.L. & Human. 1 (2011)
What is Family Law: A Genealogy Part I

handle is hein.journals/yallh23 and id is 3 raw text is: What is Family Law?: A Genealogy Part I Janet Halley* INTRODUCTION What is the place of the family in legal scholarship and teaching, and in deep, implicit ideas about how our legal order is arranged? How did it get to be that way? Published in two separate Parts, this Article tells a story of American family law: how the law of Domestic Relations emerged as a distinct legal topic in late-nineteenth-century legal treatises, and what ideological conditions facilitated its renaming and reconstruction as Family Law in the Family Courts and casebooks of the twentieth century. Almost without exception, throughout this account Domestic Relations/Family Law are what they are by virtue of their categorical distinction from the law of contract and, more broadly, the law of the market. This distinction did not always seem natural: this Article tells how it was invented. The resulting market/family distinction remains a latent but structural element of the legal curriculum and the legal order more generally today. This Article calls that distinction into question and suggests that family law should be restructured to connect it for the first time to domains of law more readily understood to relate directly to the market: economically significant productivity, social security provision, and the fair or unfair distribution of economic resources. My story comes in three time periods, corresponding with Duncan Kennedy's three globalizations of legal thought.' The first is the classical * Royall Professor of Law, Harvard Law School. Thanks to lain Frame, Duncan Kennedy, Benjamin Levin and James Q. Whitman for substantive contributions and criticism; to Janet Katz and David Warrington for superb librarianship; to Lesley Schoenfeld and Steve Chapman at the Harvard Law Library, Michael Widener at the Lilian Goldman Law Library, Yale Law School, Stephen Wasserstein and Karen Lee at Gale, and the Harvard College Library Imaging Service for help securing the appendix images and for granting the permissions to reproduce them; to the Up Against Family Law Exceptionalism conference for the context for this work; and to Cary Mayberger for top- notch research assistance. Thanks to Lama Abu-Odeh and Philomila Tsoukala for alerting me to a question on which this piece is based: When is Family Law? If one could dedicate an article, I would dedicate this one to Duncan Kennedy. All errors of fact and judgment are mine alone. 1. Duncan Kennedy, Three Globalizations of Law and Legal Thought: 1850-2000, in THE NEW 1

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