Bargaining in the Shadow of the Folk Law: Expanding the Concept of the Shadow of the Law in Family Dispute Resolution

Jonathan Crowe, Rachael M Field, Lisa Toohey, Helen Partridge, Lynn McAllister

Research output: Contribution to journalArticleResearchpeer-review

Abstract

The idea that parties bargain in the shadow of the law has been highly
influential in research on dispute resolution and family law. Critics have
questioned the utility and coherence of the concept, but it continues to be
widely accepted. This article draws on an empirical study of access to
legal information in a post-separation context to argue for a broader and
more realistic understanding of how the shadow of the law influences
parties’ expectations and strategies in family law matters. Family dispute
resolution, we suggest, does not take place in the shadow of the positive
law (the law contained in statutes, case law and other formal legal
sources), so much as the shadow of the folk law (the law as depicted in
informal sources such as online materials and popular media). It follows
that there is not just one shadow of the law; rather, there are multiple
shadows. These findings hold important implications for government
agencies, family dispute resolution providers and others involved in
providing information and advice on post-separation issues.
Original languageEnglish
Pages (from-to)319-338
Number of pages20
JournalThe Sydney Law Review
Volume40
Issue number3
Publication statusPublished - Sep 2018

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