Online - Virginia Law Review

The Networked—Yet Still Hierarchical—Family

Melissa Murray’s article The Networked Family: Reframing the Legal Understanding of Caregiving and Caregivers exposes a reality of contemporary family life that family law had relegated to the invisible, parents’ reliance on networks of caregiving, both paid and unpaid. In doing so, The Networked Family makes several significant contributions to family law scholarship.

First, the article advances family law’s ongoing project of becoming responsive to the ways that families live their lives, regardless of formal rules. Murray achieves this objective by challenging the traditional understanding of parenthood as an indivisible, comprehensive, and exclusive status and focusing instead on the way parents often rely on nonparents in caring for children. Second, The Networked Family seeks to confer value on caregiving by acknowledging its important role and calling for greater official recognition—wherever such recognition might lead. Accordingly, the article has implications for how family law might treat even caregiving provided directly by parents. Third, Murray’s analysis joins that of other family law scholars who question family law’s existing boundaries and thereby suggest that fertile ground for much-needed reforms might lie beyond where conventional conceptualizations of the field end. In looking past family law’s usual cast of characters and urging inclusion of nonparental caregivers, The Networked Family helps reveal the implicit value judgments and assumptions that account for the contemporary construction of family law itself. These are all welcome and meaningful insights.

Although Murray consequently provides several worthwhile points of departure, this brief response attempts to follow just one strand, the possible implications of her analysis for certain inequalities and hierarchies that long have characterized family law. Here, I consider what Murray’s call for recognition of caregiving networks might mean, first, for the traditional gender stereotypes that family law once embraced but now professes to reject and, then, for the issues of race and class that family law all too routinely ignores. To be sure, at points Murray acknowledges these variables—for example, in noting the promise of one theoretical approach that she considers, dismantling the notion of legal parenthood altogether. My response takes a closer look at caregiving and hierarchies of gender, color, and class.

Warming Up to Climate Change Litigation

There was never any doubt that Massachusetts v. Environmental Protection Agency (“Mass. v. EPA”) would be a closely watched and hotly contested case. Nor was there much question that Justice Anthony Kennedy would provide the pivotal swing vote. On many of the issues before the Court, the remaining justices were sure to be evenly divided. Justice Kennedy has shown an uncanny ability to find himself in the majority in close cases—environmental cases in particular —and this would be no exception.

The surprise in Mass. v. EPA is the facility and ease with which the Court dispatched opposing arguments and redefined prior precedents. Not content to widen doctrines on the margins, Justice Stevens’s majority opinion blazed a new path through the law of standing and unearthed newfound regulatory authority for the EPA. Under the Court’s new interpretation, the Clean Air Act (“CAA” or “the Act”) provides EPA with roving authority, if not responsibility, to regulate any substance capable of causing or contributing to environmental harm in the atmosphere.

The federal government did much to facilitate this course. At least since Clinton EPA General Counsel Jonathan Cannon first suggested EPA’s preexisting regulatory authority could reach greenhouse gases, various agencies laid the groundwork for the eventual regulation of greenhouse gases. Even during the second Bush Administration, EPA has been anything but a reluctant regulator, and as such the present administration was not the most compelling advocate for its own cause.

Now that EPA has authority to regulate greenhouse gases, regulatory controls on motor vehicles (as well as on other sources of greenhouse gases, including utilities and industrial facilities) are sure to follow. In time, however, Mass. v. EPA may come to stand for more than the simple proposition that Congress delegated authority to regulate greenhouse gases under the CAA. It may herald in a new era of state-sponsored litigation, environmental standing, and statutory interpretation—and yet still do little to cool down a warming planet.

The Hurricane Katrina Insurance Claims

The insurance issues that arise in connection with mass torts have been studied with some care. These issues most often involve corporate claims for coverage under Commercial General Liability (“CGL”) insurance policies. The insurance issues that arise in connection with what might be called “mass disasters,” however, have received less attention. These are natural and man-made disasters whose center of gravity is not tort, and therefore not liability insurance, but personal and property losses. The mass disaster that occurred on 9/11 did spawn a variety of non-liability insurance disputes. But even these disputes mostly involved different forms of corporate insurance, such as commercial property and business interruption coverage claims.

The losses that arose out of Hurricane Katrina in August 2005, in contrast, heavily involve individual insurance issues. In particular, tens of thousands of homeowners whose residences were damaged or destroyed by the hurricane had standard homeowners insurance. These policies insure the risk of direct physical loss to the policyholder’s home and other property, subject of course to certain exclusions from and limitations on coverage. The key exclusion in this instance precludes coverage of loss resulting from “flood.” The typical policy also contains an anti-concurrent causation clause, which provides that excluded losses (such as those caused by flood) are not covered “regardless of any other cause or event contributing concurrently or in any sequence to the loss.” Claims made for Katrina-related losses under these seemingly simple policy provisions have spawned widespread litigation and controversy. This Essay briefly surveys these issues and comments on their implications for the availability of insurance coverage in the future.

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