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Joanna L. Grossman and Lawrence M. Friedman, Inside the Castle: Law and the Family in 20th Century America, Stanford: Stanford University Press, 2011. Pp. 448. $35.00 (ISBN: 9780691149820).

Published online by Cambridge University Press:  06 September 2012

Dara Purvis*
Affiliation:
University of Illinois College of Law
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Abstract

Type
Book Reviews
Copyright
Copyright © the American Society for Legal History, Inc. 2012

Family law is a perplexing term. Whereas in one sense it regulates private relationships, it is far more than protection of a person's home and castle. Family law as an overarching category not only encompasses intimate relationships such as marriage, divorce, unmarried romantic relationships, parents and children, and care for elderly relatives—all of which are discussed in the book—but also intersects with constitutional law, criminal law, trusts and estates, and torts. Treating each topic with significant depth would result in a backbreaking tome; therefore, it is particularly impressive that Grossman and Friedman touch upon each, even if only briefly.

The book is organized topically, beginning with one of the legal underpinnings of family: marriage. Marriage is introduced as an institution both sharply limited and protected by law, as adroitly framed through the lives of Mildred Jeter Loving and Foneta Jessop. Both women died at the end of the twentieth century decades after entering into illegal marriages: Loving as one half of an interracial couple in a state that banned marriages between white and nonwhite persons, and Jessop as one member of a polygamous family. Loving's marriage was vindicated by the Supreme Court in 1967; Jessop's marriage is still unlawful in every state. Playing off these contrasts, Grossman and Friedman spend four chapters surveying marriage law. Because the “most basic assumption” of the book is that “[f]amily law follows family life,” (2) this also requires discussion of societal changes in relationships, tracing how the law evolved one step behind great shifts in expectations for what marriage is. Interestingly, this assumption triggers discussions of the decline of two previously common legal entities that gradually fell out of favor: common law marriage and “heart balm” causes of action. Civil claims brought against third parties who contributed to the demise of a marriage make headlines today only in rare instances, such as the 2009 alienation of affection claim brought by the now ex-wife of former Representative Chip Pickering against a woman with whom he allegedly had an extramarital affair. Grossman and Friedman trace the development of claims arising out of the flames of unsuccessful relationships, from early breach of promise to marry claims compensating “ruined” women for the loss of their virginity to modern attempts to obtain reimbursement for money spent on weddings that did not occur.

From marriage, Grossman and Friedman turn to nonmarital partnerships, probably the strongest example of cultural changes dragging the law two steps behind it. The liberalization of sexual mores leads directly into the meteoric rise in nonmarital cohabitation. Same-sex relationships are included in this category, labeled “Love and Romance in a Permissive Age,” which seems to be a bit of a misnomer, given that the chapter is dedicated to “the last battleground over ‘traditional’ marriage” (144).

Part three returns to marriage, or at least the dissolution of marriage. Divorce challenges the “society leading the law” assumption laid out by the authors, as they entertainingly recount how midcentury Americans had little trouble exploiting formally restrictive divorce laws. (The authors cite the singer Ry Cooder, who crooned, “One day married, next day free/Broken hearts for you and me/It's a sin for you to get a Mexican divorce” [171].) Broader fallout of the revolution of no-fault divorce, however, paints a complicated picture, including stark changes to the financial status of the former spouses as well as the myriad upheavals in the lives of children whose parents divorce.

The final topical grouping of the book addresses moving up and down the generational chain, be it inheritance rights, elder law, or the metastasizing regulations identifying how, and which, people become parents. Nontraditional paths to parenthood appropriately finish the book, as ever-changing technologies of reproduction create dilemmas that existing legal regimes are often unequipped to answer.

The only drawback to the book is that as the authors so effectively demonstrate, the laws regulating the family are in a constant state of flux. Unsurprisingly, the chapter on same-sex marriage is the most outdated by changes to the law. Since publication, both New York and Maryland have legalized same-sex marriage, the Ninth Circuit affirmed Perry v. Schwarzenegger's holding that Proposition 8 violates the federal Constitution, and more than one challenge to the Defense of Marriage Act directly addressed the federal government's definition of marriage as a solely heterosexual institution. It is unfortunate, however, that legal changes have already begun to erode the margins of the book's accuracy, as it is a stunning achievement to adeptly map such a broad field of law.