Volume 11: Issue 1, 2000
Family Law
Foreword
In the following pages USD School of Law students–classes of 1997-2001–share their research and understanding of California family law. Their work, which fulfilled Family Law course requirements in 1997 or 1999, explores the scholar's niche between law-office memo and practitioner-treatise subchapter, between appellate brief and full-blown law review article. Their personal interests–informed by life experience, by academic curiosity, or by problems confronted as a family lawyer's clerk–drove topic selection. Each short work promises concise treatment of a family lawyer's narrow topic or issue; together they provide a snapshot of the vast contemporary landscape of California family law and practice.
Why family law? The last 30 years bear witness to the latest revolution in family law: not the first, and unlikely the last. The right of marital privacy discovered by the Supreme Court in 1964 became the ironic inspiration not only for no-fault divorce but also for the deregulation of sexual relationships outside marriage. As no-fault divorce emerged, attention turned to gender equality and domestic violence. Deregulation of sexual behavior brought the abortion controversy, the decisions on illegitimacy, the beginnings of serious concern over fathers' rights and responsibilities, and promises of children's rights. The last 30 years has witnessed the gradual dismantling of the Welfare State; and the privatization of familial support has created an enormous caste of potential state and federal criminals and an astounding array of support collection mechanisms. While law tolerates and technology advances the creation of an ever increasing diversity of new relationships outside "traditional family," these same forces also oversee the destruction of a million or more "products of conception" a year and protect an existing population of ever lengthening average age.
Why California? One might begin apologetically, by confessing a California law school most of whose graduates will incline to California law practice. But better: California has been an active participant, and frequently on the front lines, of all facets of this family-law revolution. Its divorce law was the first to turn no-fault in 1970; its 1976 decriminalization of noncommercial sex inspired many other states to follow suit. California's implementation and amendment of its egalitarian marital property regime, at least for divorce, have furnished a model for other states to echo if not imitate. When it has not led, California has exemplified; few other states boast its Uniform-Act repertoire in the field. And California has a new Family Code, an amalgam of its formerly scattered laws on family formation, regulation, and destruction, nearly all of which have been reworked if not created since 1970.
More than 100 articles, and more than 70 authors, wedge between the covers of this volume. Sticklers for cover-to-cover consistency and adherence to the details of citation manuals will find grounds for disappointment. This disappointment will not be shared, one hopes, by those who place substance above cosmetics in judging credibility. California lawyers confront federal courts and academics who prefer the Harvard Blue Book system of citation, but state courts and legislature that prefer the California Style Manual. They are blessed (cursed) with both official and unofficial reports of their state's case law, and with several worthy editions of their state's statutes. They are no less comfortable with the formats of court memoranda than with text/footnote format. The editor has resisted all temptation to impose any particular format or system of citation upon the legitimate choices of this volume's authors, but expresses confidence that readers with a decent law library or electronic database at hand will be able to proceed directly to the sources represented in the citations.
Holly Brett (Class of 2000), Rochelle Strub (Class of 2001), Brigid Bennett, and faculty secretaries Maureen Kane, Nancy Roos, Debbie Solomon, and Pat Gillis deserve special recognition and thanks for their contributions to the selection of articles and production of this volume. I have appreciated their efforts, their patience, and their perseverance over some or all of the three years it has taken to put the volume together.
That the work in this volume is student work, edited and sometimes commented on by me, deserves no apology. The legal profession has a long and distinguished tradition of relying on its students and young lawyers, in addition to its professional academics and experienced practitioners, for the scholarly component of its endeavors. Unlike most other professions, the legal profession goes to its books not for truth but for inspiration. Law students quickly learn to approach even the statutes
and the cases as skeptics not true believers. The reader should bring the same lawyering skills he or she uses for the writings of judges, legislators, and professional academics–not to mention adversary lawyers–to the selections found in this volume; no fewer, and no more.
Paul Horton, Faculty Editor
University of San Diego School of Law
Summer 2000
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