A Consumer Guide to Empirical Family Law

This Article will consider the framework for empirical work on family law, arguing that the failure to ask more sophisticated questions at the beginning of the research has limited its effectiveness. In this sense, Professor Peg Brinig’s work stands out for the creativity of the questions she has asked, her exploration of underutilized databases, and her work’s potential to serve as a foundation for a new paradigm for the integration of empirical work into family law theory. This Article will discuss the way that theory—and the creation of discourses associated with it—informs empirical research. First, it will maintain that the influence of empirical work depends on the discourse in which it is embedded. Second, it considers the influence of Becker’s paradigm on legal and economic empirical research, reviewing the ways that Becker’s influence has diverted much of the empirical work away from more productive inquiries. In particular, it will suggest that Becker’s insistence on a narrow focus on “specialization” between men and women misses the much more productive work that looks at specialization among men in the nineteenth century, specialization among women in the late twentieth century, and investment in children’s human capital as the driver of these trends. Third, it will explore the alternative sociological frames, which premise family change on cultural shifts, discounting the wholesale and multifaceted economic changes that contribute to the cultural shifts. In particular, this section will suggest that this literature misses the complex interaction between economics and culture in large part because growing inequality makes it impossible to discuss “culture” as a unified concept remaking family practices. The last section will provide a “consumer guide” to empirical family law research, identifying the missing pieces necessary to create more robust discourses connecting family change to family law and policy. This Article will conclude that class divisions along with racial and regional considerations constitute a critical lens for empirical research and that Professor Brinig’s work offers a foundation for alternative explorations of the interactions between family law and family dynamics