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In the Democratic presidential debate on November 6, 2003, the eight candidates were asked whether they had ever used marijuana. Three, including the party’s eventual nominees for president and vice president, answered yes; a fourth said that he had not but thought it should be decriminalized; and a fifth stated that she had no comment. Less than twenty-four hours later, believing that students possessed marijuana, police exploded into a South Carolina high school hallway with guns drawn. They ordered all 107 people to the ground, handcuffed approximately a dozen students, and brought in drug-sniffing dogs, searching any bags to which the dogs reacted. One fourteen-year-old witness described how police treated his classmates: ‘“They would go put a gun up to them, push them against the wall, take their book bags and search them.’” In the end, the officers found nothing and arrested no one.

The presidential candidates almost certainly could not have openly admitted to violating any other law while maintaining the viability of their candidacies. Yet others suspected of breaking that same law experience the kind of treatment suffered by the students in South Carolina. The juxtaposition of these two events illustrates the vast chasm between social norms and the laws prohibiting marijuana.

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Family law is full of private tragedy. Case after case pits one family member against another in a zero-sum struggle for resources. Spouses battle over limited assets; parents clash over child support; and children fight each other for resources when parental income is stretched across multiple families. Bad choices and bad luck, it seems, precipitate calamity; and there is little that the law can do when families self-destruct amidst unemployment, poverty, mental illness, disability, substance abuse, domestic violence, child neglect, and other problems.

By legal tradition, family law is private law: it governs relationships between individuals, rather than between individuals and the state. On this view, family law, like other forms of private law, exists primarily to foster private order. On this view, family law should implement individuals’ intentions— and should not redistribute risk and resources according to some public ideal. As private law, then, family law’s core mission is to resolve disputes among family members when private order breaks down. Accordingly, functional families should have little to do with the law; they manage their own affairs without legal supervision. Dysfunctional families, by contrast, involve the law in inevitable tragedy. Once affective bonds have frayed and private order has failed, the courts must resolve disputes as best they can, and all too often any decision will harm one party or the other.

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Until recently, when a lesbian couple had a child through artificial insemination, only one member of the couple was considered the legal parent of the resulting child at the moment of birth. Today, in a small but growing number of states, this is no longer the case. Instead, in this small group of states, from the moment of birth, both members of the couple are treated as legal parents of a child born to the couple through artificial insemination. While this advancement in state law is tremendously important for many children, the resulting protections are extremely tenuous. These children are assured protection only so long as they and their families remain in one place, never crossing state lines. This essay explores why this legal vulnerability exists and offers a proposal for mitigating this potentially harmful state of affairs.

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The Office of Legal Counsel (OLC) has been deemed “the most important government office you’ve never heard of” by Newsweek magazine. Indeed, the office is extraordinarily powerful, standing as the legal arbiter of what the executive branch can and cannot do. With great power, so the saying goes, comes great responsibility—to fairly and forthrightly interpret the law, to hold the government back when it risks overreaching, and to settle disputes with an even hand. Yet during the Administration of George W. Bush, OLC let partisan political interests and ideology interfere with its function as fair-minded authority. As a result, the office has sanctioned— and the executive branch has pursued—legally unsound policies. This conduct most prominently entered the public consciousness in two incidents: the sanctioning of torture by U.S. military forces and the politicization of hiring at the Department of Justice. The nomination of OLC head Dawn Johnsen has also recently prompted controversy.

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It is with great pleasure that I introduce Volume 4, Number 1 of the Harvard Law & Policy Review. In addition to selecting articles discussing religion and science, implicit bias in the legal system, federal sentencing guidelines, and federal farm subsidies, the HLPR staff has also edited several pieces dedicated to this Volume’s symposium: progressive visions of the American family. As first President and now Senior Advisor of the National Partnership for Women and Families (formerly the Women’s Legal Defense Fund), I have dedicated my career to promoting fairness in the workplace, access to quality health care, and policies that help women and men meet the dual demands of work and family. The four articles in this Volume’s symposium aid us in better understanding how to approach these important issues, each providing important analysis of family legal dynamics, and each proposing feasible policy solutions to address the challenges confronting families today.

Although the subject matter in each of the four symposium articles is different, each recognizes the tremendous impact that law and public policy have in shaping families. As Anne L. Alstott notes in the following pages, family law is traditionally perceived as a legal backstop, stepping in to provide order when private familial relationships breakdown. The following symposium articles demonstrate the inaccuracy of this conception. As Alstott’s piece demonstrates, family law is inherently integrated with family tragedies of disability, family breakup, mental illness, substance abuse, and parental poverty. Using two examples—spousal support and disability, and child support for multiple families—Alstott illustrates how financial entitlements in family law and in social welfare policy are interdependent, and that changes in family law could dramatically alter the likelihood and ramifications of family tragedy. The piece thus undermines the traditional privatepublic distinction traditionally found in family law scholarship.

Karen Kornbluh and Rachel Homer’s piece further discredits the idea of distinct private and public legal realms, describing how tax policy and government benefits programs discourage women from occupying an economic provider role other than homemaker. The authors argue how restructuring the tax code, private pensions, and Social Security is necessary to remedying this longstanding inequality.

Charting some new legal territory, Courtney G. Joslin addresses an emerging challenge facing same-sex parent families, namely state regulations that do not automatically recognize a lesbian birth mother’s partner as the child’s second parent, thereby forcing same-sex parents to complete a second-parent adoption—an option that is not always available. Noting how this failure to recognize one of the child’s two parents has left thousands of children emotionally and financially vulnerable, Joslin proposes a system designed to eliminate this inequitable legal regime.

While Alstott, Kornbluh, and Joslin all note the influence of law and policy on families, David Katner’s analysis takes the inquiry one step further, identifying how the law’s impact on families eventually affects society as a whole. Providing several policy proposals informed by both demographic and comparative research, Katner notes how legal regimes promoting daycare and after-school care could help the nation confront juvenile delinquency and crime.

Although the relationships binding spouses, partners, parents, and children are among the ones we hope to keep most private, pursuing reform requires that public attention be given to these issues. This Volume, with its diverse set of authors and issues, takes significant steps in starting the conversation. There can be no better time to shine the spotlight on the law’s effect on families in order to promote progressive visions of the American family.

There are winners and losers in the modern American farm economy. This reality is in no small part due to U.S. farm policies enacted through generations of omnibus legislation known as Farm Bills. Winners include industrial agricultural giants, such as Cargill, that reap record profits on the strength of government-subsidized cheap inputs,1 and incorporated holders of tens of thousands of acres that achieve vast economies of scale with GPSequipped tractors and monocultures of commodity crops. The losers, familiar from press reports, are the individual farmers and workers behind the rapid contraction in the number of U.S. farms—a drop of over 85,000 from 1997 to 2002—and the increase in average acreage, as well as victims of systemic barriers to family farm, sustainable, and organic operations. These outcomes are commonly attributed to U.S. farm policy’s preference for monoculture production on huge acreages, which can have the unfortunate result of destabilizing rural communities. Also among the losers are the industries and individuals that experience the negative environmental impacts of U.S. farm policy, including diminished water and soil quality, decreased biodiversity, dwindling freshwater resources, and increased greenhouse gas (GHG) emissions. This article addresses these damages and the failure of federal agencies to observe a law that might provide some measure of transparency, level-headed comparative analysis, and perhaps even mitigation: the National Environmental Policy Act of 1969 (NEPA).

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As the nation faces policy challenges over juvenile delinquency and subsequent crime, one all-but-forgotten option remains as promising as ever despite its virtual absence in recent national discussions and debates: a comprehensive daycare and after-school care policy.2 For decades, social scientists in this country have examined various designs of early educational and daycare programs, some promising tremendous alterations in the lives of participants and others offering far more modest achievements. Today, however, long term studies provide a much clearer picture of how early child care programs and after-school programs offer significant benefits for communities. Longitudinal evidence suggests that early childhood intervention programs, which buffer the effects of delinquency risk factors, help prevent chronic delinquency and later adult offending. After-school care programs also provide healthy alternatives to otherwise unsupervised adolescent behavior and hopefully spare children and their communities the expense, fear, and suffering which often accompanies delinquent misconduct and subsequent adult criminal misconduct. Overall, early intervention programs help reduce risk factors that contribute to delinquent behavior and later adult offending, while after-school programs create activities for juveniles during the time period when many delinquent acts occur.

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