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Elizabeth Katz, Criminal Law in a Civil Guise: The Evolution of Family Courts and Support Laws, __ U. Chi. L. Rev. __ (forthcoming 2019), available at SSRN.

The question of the relationship between criminal law and family law has been amply explored in recent years, the seemingly neat separation between the fields coming under repeated challenge.1 Scholars have tackled the question from a variety of different perspectives: showing us how criminal law can function as family law for a specific section of the population, obliterating in the process basic family law assumptions about privacy and autonomy;2 or demonstrating the ways in which family law and criminal law have always operated in tandem to enforce specific sexual mores or ideals of intimacy.3 In Criminal Law in a Civil Guise: The Evolution of Family Courts and Support Laws, Elisabeth Katz contributes to this body of scholarship in a way that has the potential to unmoor contemporary assumptions about the civil nature of family court jurisdiction.

In this carefully researched and thoughtfully written piece of legal history, Katz concentrates on the history of family courts and their jurisdiction especially in the first half of the twentieth century. Adding a plethora of original sources to the historical literature on domestic relations courts,4 Katz highlights aspects of this history that had perhaps gone underappreciated inside family law.5 At their inception, some of the most influential domestic relations courts in the country focused heavily on the criminal prosecution of nonsupport cases and no one at the turn of the twentieth century would have thought of domestic relations courts as anything other than a branch of the criminal courts. More importantly, Katz argues that criminal jurisdiction over non-support cases continued to be at the core of family courts’ expansive jurisdiction, even as states strategically recharacterized the nature of these courts as civil in order to give judges more flexibility without the necessity of criminal law protections.

Katz tells this story in three steps. The first step is the gradual criminalization of family non-support in the late nineteenth century. States adopted criminal penalties for family non-support, usually at the misdemeanor level, at the behest of overburdened charities using a discourse of paternal moral failures reminiscent of the “deadbeat dads” of more recent welfare reforms. Some criminalized non-support as a felony, but in most states misdemeanor non-support was judged sufficient to qualify for extradition, a tool thought of as necessary in an era of increasingly mobile family deserters.

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  1. See, e.g., Melissa Murray, Strange Bedfellows: Criminal Law, Family Law, and the Legal Construction of Intimate Life, 94 Iowa L. Rev. 1253 (2009); Tonya L. Brito, Fathers Behind Bars: Rethinking Child Support Policy Toward Low-Income Noncustodial Fathers and Their Families, 15 J. Gender Race & Just. 617 (2012); Cynthia Godsoe, Redefining Parental Rights: The Case of Corporal Punishment, 32 Const. Comment. 281 (2017); Jeanie Suk, Criminal Law Comes Home, 116 Yale L.J. 2 (2006); Andrea L. Dennis, Criminal Law as Family Law, 33 Ga. St. U.L. Rev. 285 (2016).
  2. See, e.g., Suk, supra note 1; Dennis, supra note 1.
  3. See, e.g., Murray, supra note 1.
  4. See, e.g., Anna R. Igra, Wives Without Husbands: Marriage, Desertion, &Amp; Welfare In New York, 1900-1935 (2007); Michael Willrich, City Of Courts: Socializing Justice In Progressive Era Chicago (2003); Amy J. Cohen, The Family, the Market, and ADR, 2011 J. Disp. Resol. 91, 100-103 (2011).
  5. With exceptions as Katz notes. See, e.g., Amy J. Cohen, supra note 4; Janet Halley, What Is Family Law?: A Genealogy Part II, 23 Yale J.L. & Human. 190 (2011).
Cite as: Michael Froomkin, Footnote break test, JOTWELL (April 1, 2019) (reviewing Elizabeth Katz, Criminal Law in a Civil Guise: The Evolution of Family Courts and Support Laws, __ U. Chi. L. Rev. __ (forthcoming 2019), available at SSRN), https://zetasec.jotwell.com/footnote-break-test/.