Family law stands at the center of America’s culture wars. Whether regulating access to abortion, debating parental rights in education, or controlling gender-affirming care for children, states are choosing starkly different, often deeply contentious, paths that track familiar political divisions.1 Polarization in family law is neither new nor surprising for an area that implicates bodily autonomy, parenting, religion, and equality in numerous dimensions, including race, class, sexual orientation, and gender identity.2 Some disagreement is inevitable, indeed healthy, but the hyper-politicization of family law poses serious risks to children and families, making them pawns in fights for political power, distracting attention from their concrete needs, and impeding the constructive evolution of law and policy.3
Focusing on the headlines, however, obscures an equally important phenomenon. Across the broad domain of contemporary family law,4 many doctrines and policies are not polarized, even when they raise the most socially and politically sensitive issues.5 Instead, much of family law evinces convergence.6 Despite strong and conflicting views on corporal punishment, for example, every state recognizes a parental privilege to use reasonable corporal punishment, with courts justifying the privilege with consistent reasoning: as a critical restraint on the power of the state.7 Similarly, states across the country, including those not known for public investments in families, are embracing universal prekindergarten, with Oklahoma an early leader and states like Alabama and Mississippi investing in quality programs.8
Many instances of convergence in family law emerge after intense contestation — that is, issues become depolarized over time. In this category, states end up with similar rules and policies on once-divisive issues, and public support tends to coalesce around the new doctrine or policy. Most states, for example, have legalized gestational surrogacy and permit adoptees to access adoption records, issues that were once deeply contested.9 Marriage equality — the right of two adults to marry, regardless of sex — is a paradigmatic example of consensus following division. For two decades, the issue drove political cleavages.10 But by the time the Supreme Court decided Obergefell v. Hodges,11 public support for marriage equality was strong.12 This support continues to grow, although the Court’s reversal on abortion in Dobbs v. Jackson Women’s Health Organization13 cast doubt on the lifespan of Obergefell as a matter of constitutional doctrine, and there is ongoing resistance to marriage equality from some quarters.14
Even when state laws and policies are not uniform, pluralism on contentious issues does not necessarily reflect a red-blue divide. Conservative states, for example, might be expected to hew closely to traditional notions of parentage, granting legal rights only to adults with marital or biogenetic ties to a child. But a map of states that embrace the functional parenthood doctrine, which grants legal rights to a person who serves the psychological and functional role of a parent, looks nothing like familiar red and blue patterns.15 And a list of states that have adopted some version of a pregnant workers fairness act, which requires employers to make reasonable accommodations for pregnant workers, similarly defies reductionist partisan labels.16
What — if anything — ties together these widespread but underappreciated patterns of convergence, depolarization, and nonpartisan pluralism in family law? Intuitively, they seem to share a pragmatic approach to decision- and policymaking, that is, focusing on what works to help children and families. But pragmatism is more than a colloquial shorthand for practical solutions. It is also a method with a distinct lineage in American thought and broad application in contemporary scholarship and advocacy. American pragmatism traces to late nineteenth- and early twentieth-century philosophers, most notably Charles Sanders Peirce, William James, and John Dewey, who were dissatisfied with then-dominant modes of thinking that laid claim to certainty about the source of ideas.17 The early pragmatists proposed an alternative method that focused not on first principles but instead on whether an idea was useful in clarifying or resolving a philosophical dispute.18 They argued that all ideas are tentative and subject to testing and revision based on empirical evidence and experimentation.19 And they were pluralist in their understanding of knowledge, looking to lived experience as well as more traditional sources of empirical evidence.20 Advocates and scholars have adapted pragmatism to address social problems, from Dewey’s project of reforming American public education to more recent efforts to encourage modern social movements.21 In short, the living tradition of American pragmatism offers an approach to understanding and solving problems.22
As this Article argues, convergence, depolarization, and nonpartisan pluralism in contemporary family law evince deep, underlying commonalities that reflect the pragmatic method.23 Across disparate areas, judges, legislators, administrators, and others are largely setting aside abstract ideals and political ideology and instead focusing on whether a doctrine or policy promotes core aspects of family and child well-being, such as a child’s need for a consistent caregiver and a family’s need for basic resources. And decisionmakers are drawing on experience-based learning, empirical evidence, and experimentation. Finally, decisionmakers are finding context-specific solutions, because what works in one setting may not work in another. This Article terms this approach to decision- and policymaking pragmatic family law.24
The doctrine of functional parenthood provides an apt illustration. Traditional parentage laws embody abstract ideals and dominant norms, grounding legal parentage in marriage and biogenetics.25 But lives are complex, and adults without marital or biogenetic ties often raise children. Courts developed the functional parenthood doctrine to address this reality.26 In case after case, family courts eschew broad pronouncements about acceptable and unacceptable family forms.27 Instead, courts listen to families and ask a specific question: whether formalizing an arrangement with an adult who is already caring for the child will promote the well-being of this child.28 In making this contextualized decision, courts rely on empirical evidence about the importance of stability between a child and caregiver, and courts center the experiences of affected families.29 As a result, family courts often ratify nontraditional family forms.30
The example of functional parenthood also illustrates the category of nonpartisan pluralism. As noted above, the states that have embraced the doctrine do not fall neatly into a political category. Instead, the doctrine has taken root where courts find themselves especially in need of a tool to promote stability in a child’s life. As a result of opioid overdose deaths and opioid use disorder, for example, many parents either have died or are incapacitated.31 Only four percent of children nationwide live with neither parent,32 but in some parts of Appalachia, more than a third of all students live with a relative or other caregiver, sometimes a teacher or neighbor.33 It is unsurprising, then, that Kentucky, which has a high concentration of opioid overdose deaths,34 is by far the country’s leader in functional parenthood cases.35
This Article does not argue that the pragmatic method is the singular driving force behind convergence, depolarization, and nonpartisan pluralism in contemporary family law. There are many dynamics at play, and, true to pragmatism, the Article does not espouse a grand theory to explain all of family law or propose one path forward. This Article does argue that the patterns, at core, reflect a common method and, more importantly, that highlighting this methodological through line generates useful insights for scholars, legal actors, and advocates seeking to improve child and family well-being in an era of polarization.
Explicitly recognizing the pragmatic method in family law — that is, naming the tools that legal actors are already using — provides guidance about what is possible in the current political climate.36 Family law is fertile ground for the pragmatic method because promoting child well-being is foundational to family law,37 and pragmatism provides a tool to further this goal. As the Article demonstrates, pragmatic family law has led to substantial improvements in the well-being of children and families, contributing, for example, to the historic drop in child poverty for all racial groups over the last few decades.38 Further, naming this approach invites a debate about its relative merits compared to more familiar approaches to decisionmaking, such as rights-based litigation and discourse, and values-based debates.39 All three approaches have a role to play. Rights play an important role in family law, and it is critical to talk about values in many contexts. But naming pragmatism as a distinct tool encourages discussion about how these approaches can work separately and together.
Crystallizing methodological commonalities around pragmatism also has doctrinal and institutional implications. A perennial concern in family law doctrine is the ubiquity of open-ended standards, including the equitable distribution and best interests of the child standards. Scholars have long criticized the indeterminacy of these standards, arguing that they empower judges to make value-laden decisions with virtually unfettered discretion.40 Pragmatism is one way of grounding these inquiries, providing methodological guidance for courts: rely on the lived experience of family members, use empirical evidence, and make contextualized decisions. This echoes what advocates and scholars have long argued courts should do in family law cases, but pragmatism provides a template and set of expectations for judicial decisions.41 Likewise, elevating the pragmatic method in family law highlights institutions that already — intentionally or not — deploy the approach. Identifying these institutions provides guidance for reforming the many institutions of family law that might also use the method productively but are not currently doing so.42
Finally, naming pragmatism as a distinct approach underscores its significant limitations, at least as constrained by the modern political context. Thus far, the method has not dislodged family law’s system of privatized dependency; family members still bear primary responsibility for caregiving, with limited support from the state.43 And pragmatism has a mixed record on addressing racial inequity. Many of the examples of pragmatic family law identified in this Article, such as the Earned Income Tax Credit, Medicaid expansion, and universal prekindergarten, have helped reduce racial gaps between families.44 But this progress comes with a critical caveat: there is relatively broad public support for pragmatic doctrines and policies when they are not framed as redressing racial inequity and instead are cast in race-neutral terms.45 Indeed, one of the starkest divides in the United States is disagreement about the government’s role in addressing racial inequity.46 Thus, when a problem is understood to affect primarily families of color, race has trumped pragmatism.47 The functional parenthood example illustrates this phenomenon. It is part of a larger story about family law’s (mostly) compassionate response to the opioid epidemic. Legal actors are using the pragmatic method to support families affected by the epidemic, including keeping families together and providing treatment for parents.48 During the crack epidemic, by contrast, legal actors pathologized Black parents and made little effort to blunt the impact of the epidemic on families.49
This Article surfaces this trade-off: pragmatic family law is advancing the well-being of children and families of color, but it is doing so obliquely. As a matter of values, this means the United States is not reckoning with our history of racism and ongoing racial inequities. And, as an instrumental matter, it means family law is not developing policies that tackle the root causes of racial inequity. Accordingly, this Article does not argue pragmatic family law is a panacea but rather describes what pragmatic family law has — and has not — accomplished, prompting debate about the relative merits of different approaches to addressing racial inequity.
In short, this Article makes three contributions to the literature. It identifies and tracks in detail patterns in contemporary family law that defy the polarized contestation all too present in high-profile doctrines and policies. The Article then looks to American pragmatism to find a methodological link in these underappreciated patterns. Finally, by connecting the patterns with a conversation that has been unfolding for 150 years about knowledge and problem-solving, the Article draws lessons about the utility and limits of the pragmatic method in family law. Most notably, identifying the pragmatic method as a distinct approach to family law decision- and policymaking encourages scholars to debate its relative merits as compared with rights-based and values-based approaches, and it encourages legal actors and practitioners to deploy pragmatism more consciously, where and when appropriate.
The Article proceeds as follows: Part I describes polarization in family law, names some of the forces driving the phenomenon, and identifies the harms it poses to the well-being of children and families. The Article then provides granular observations about convergence, depolarization, and nonpartisan pluralism in family law. Following the pragmatic method, Part II seeks to learn from these examples to suggest a hypothesis for linking disparate strands in contemporary doctrine and policy, and it finds that commonality in the pragmatic method. Part III explores the heft of that methodological linkage, sketching lessons for scholars, legal actors, and advocates. It examines the scope, scale, and place of pragmatic family law as compared with other approaches to decisionmaking. It identifies the significant achievements of pragmatic family law in furthering child and family well-being as well as the larger social challenges that limit the utility of the approach. The Article concludes that recognizing pragmatic family law as an explicit method and understanding its place among other approaches helps scholars, advocates, and legal actors better and more purposefully deploy this tool in the law reform toolbox, guiding both doctrinal and institutional reforms.
* Joseph M. McLaughlin Professor of Law, Fordham Law School. For helpful suggestions and insights, I am grateful to Sania Anwar, Susan Appleton, Wendy Bach, Jessica Bulman-Pozen, Emily Buss, Naomi Cahn, June Carbone, Kristin Collins, Courtney Cox, Catherine Davidson, Nestor Davidson, Nancy Dowd, Maxine Eichner, Kris Franklin, Jennifer Gordon, Lisa Grumet, Josh Gupta-Kagan, Henry Huntington, Courtney Joslin, Ethan Leib, James Liebman, Solangel Maldonado, Linda McClain, Douglas NeJaime, Kimani Paul-Emile, David Pozen, Clare Ryan, Aaron Saiger, Carol Sanger, Elizabeth Scott, Robert Scott, Jane Spinak, Lisa Washington, Deborah Widiss, Yiran Zhang, and Benjamin Zipursky, as well as workshop participants at the Berkeley Poverty Law Conference, Columbia Law School, the Family Law Scholars and Teachers Conference, the New York Area Family Law Scholars Workshop, and the North Carolina Law Review 2022 Symposium on Families, Crisis, and Economic Security: Rethink-ing the Role of Government. For excellent research assistance, I thank Teresa Huang, Karl Kristensen, Isaac Lunt, and Anna Belle Newport, and for outstanding editing, I am grateful to the Harvard Law Review.