Moral Discourse and the Transformation of American Family Law

Family law has undergone momentous change in recent decades. In this Article, Professor Schneider proposes that the transformation in family law can be understood as a diminution in the law’s discourse in moral terms about the relations between family members and as a transfer of moral decisions from the law to the people the law once regulated. Professor Schneider identifies countertrends and limits to the changes he describes, and then investigates the reasons for the changes. He hypothesizes that four forces helped change family law and moral discourse within family law: the legal tradition of noninterference in family affairs; the ideology of liberal individualism; American society’s changing moral belief; and the rise of “psychologic man,” which is a shorthand way of describing a host of changes in the way law and society view humans and human relationships. Using Roe v. Wade as a case study, he explores the consequences of these four forces for family law. Finally, Professor Schneider suggests fruitful avenues through which the changes could be further investigated.