Private Law Theory

ABSTRACT
family law is full of hard decisions. One of the most difficult – and most fundamental – concerns whether courts should remain committed to generally applicable rules of law even when they lead to normatively ugly results. Applying Hayek’s theory of law and liberty to contemporary American family law, this Essay concludes that – despite the risk of perverse results in the short term – family lawyers faced with this decision would benefit from greater attention to the Hayekian values of predictability, adaptation, and equal application. By illuminating the structural costs posed by normatively satisfying particular judgments, Hayek’s framework offers a powerful tool for future distributional analyses of family-law decision-making.

Jackson Neagli, Hayek Goes to Family Court, Yale Law Journal Forum volume 133. Published 13 March 2024.