Posted by Randy Barnett:
More on Restatements
Yesterday a reader sent me a copy of this satire on the Restatements
that appeared in the 1994 volume of the Yale Law Journal (104 Yale
L.J. 707) entitled, Restatement of Love by Gretchen Craft Rubin and
Jamie G. Heller. Here is how it opens:
Custom has long been the authority in matters of love. Men and
women have turned almost unthinkingly to tradition and prevailing
social norms for guidance in the tender passion. Yet the Bar of
late has come to acknowledge that the lack of codification in this
realm has left a rent in the otherwise seamless web of the law. To
address this gap, the Reporters have set forth the Restatement of
Love.
No doubt some will question the departure from tradition that the
Restatement of Love represents. Although the legal rules pertaining
to marriage, divorce, and estates have been well established, the
law's application to a relationship's early stages has hitherto
been largely unexplored. Romantic relationships have been presumed
unsusceptible to a structure of rules, perhaps because of the
widespread belief that love is the most intimate and idiosyncratic
of human emotions. The Restatement of Love, however, is premised on
the view that love, like all other aspects of human interaction,
can be subjected profitably to legal analysis.
Scope of this Restatement. Currently, matters of the heart are
governed by a complicated network of unwritten norms that specify
the parties' rights and obligations. These mores, though subject to
extensive discussion in almost every field of human endeavor,
ranging from art to literature to the social sciences, have yet to
be put to the rigor of legal scrutiny. The Restatement undertakes
this task. It codifies the underlying principles of love and, where
appropriate, draws on established legal doctrines from other
fields. The claim has been made that "[t]he heart has its reasons,
of which reason knows nothing." By distilling a universal, reasoned
framework for relations of love, the Restatement will refute this
widespread, but mistaken, view.
I also received this amusing response to my earlier post on the
Questionable Value of Restatements:
You gotta get out more. Spend some time in states where the judges
are political hacks elected to six year terms and the supreme
couover at rt justices are called the seven potted geraniums. Make
common law? These guys don't even know when to pull a police stop!
[1]Link
I am thrilled we have the Restatements so we have books with
sufficent heft to hit the judges over the head with.
[I found almost as interesting the signature in this reader's email:
Disclaimers:
This information was added
automatically by Mozilla.
It is not intended
to be a signature.
I am not your lawyer.
You are not my client.]
This reminds me of a catty remark I used to hear when at the
University of Chicago: Would you really want commercial law made by
Cook County Circuit Court judges? Now, I used to be a prosecutor in
Cook County, so I know that this attitude is based on fact. Many
circuit court judges are hacks or, when I was there during
[2]Operation Greylord, worse.
But this accusation assumes that state judges are worse today in this
regard than they used to be, and I know of no reason to believe this
is so. Moreover, legal rules are largely made by appellate courts not
trial judges and I think that, whatever their weaknesses, state
appellate court judges are not incompetent. More importantly,
confronting myriad cases with a duty to dispose of them provides them
with pertinant knowledge of the deficiencies of previous rules and the
interest to do something about it. And not evey judge need be an
innovator for innovation to emerge from a common law system. (Most are
not innovators, and we should be grateful for that.) My concern
remains that an authority like the Restatement inhibits this
evolutionary process--though I could be wrong about this.
References
1.
http://www.cleveland.com/news/plaindealer/index.ssf?/base/news/110734020171220.xml
2. http://www.tulanelink.com/tulanelink/greylord_02a.htm
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