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Restatement of Love
(Tentative Draft)

By GRETCHEN CRAFT RUBIN AND JAMIE G. HELLER
February 14, 2006

 

Editor's Note: The full version of this piece first ran in the December 1994 issue of the Yale Law Journal. Excerpts below are reprinted by the Wall Street Journal with the permission of The Yale Law Journal Company and William S. Hein Company from The Yale Law Journal, Vol. 104, pages 707-730.

Introduction

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.

Chapter One

Meaning of Terms

This Chapter defines the terms used in this Tentative Draft. Many commentators resist established definitions in the context of love and argue that these "ancient" categories are "crude and unworkable." Some contend that such categories are mere constructs, designed to push people toward conventional relationships. But law, by its very nature, relies upon a common understanding of the terms that define it. This Restatement will employ the following neutral and modern terms in order to encompass the greatest number of possible situations.

1.1 Interest

An interest is the object of any human desire.

Comment:

Although this definition mirrors that found in the Restatement of Torts, Second, readers are cautioned that the term has somewhat different connotations in this field.

1.2 Party

A party is any natural person engaged, or potentially engaged, in a relationship.

Comment:

Alternate and colloquial terms to describe the parties within the relationship include, but are not limited to: boyfriend, girlfriend, significant other, partner, lover, sweetheart. Note that "ladyfriend" and "manfriend" are considered vulgar terms that are now in disrepute among all circuits.

1.3 Relationship

A relationship is that status enjoyed by individuals who consider or comport themselves in a manner that indicates an ongoing romantic involvement.

Comment:

Alternate and colloquial terms for a relationship include, inter alia: going steady, dating, an item, seeing each other, involved.

1.4 Love

Parties in "love" are those parties to a relationship who consider themselves engaged in the highest level of emotional intimacy attainable and who generally presume that such state will continue indefinitely.

Comment:

The English language contains no precise alternate term for "love." This fact is often decried as a constraint on the expression of emotional subtlety. For the purpose of this Restatement, however, one term is sufficient.

1.5 Dissolution; breakup

A dissolution or breakup is any act by which a relationship is terminated.

Comment:

Dissolution may be accomplished by either unilateral or bilateral action.

Chapter Two

Courtship

Chapter Two reviews the three principal models of commencing a relationship: the blind date model, the informal acquaintance model, and the aggravating circumstances model. In recent history, the blind date model was paramount, and in fact it still remains strong in homogeneous urban and suburban communities. Because the model is so prevalent, and because the parties necessarily bargain at arm's length, certain practices have become standard for blind dates. Blind dates are highly structured, formal transactions.

In contrast to the blind date model, parties to the informal acquaintance model -- who already know each other -- are not bound by standard terms. The informal acquaintance model prevails in school and work settings, and its popularity has increased with the growth of coeducation and women in the workplace.

The aggravating circumstances model transcends any particular geographic or contextual identification. It is acknowledged to be the most unstable and hazardous of the three methods of meetings.

2.1 The Blind Date Model; Boilerplate Terms

Parties entering into a relationship through the blind date model are bound by the standard terms of the relevant jurisdiction. Standard terms applicable in all jurisdictions include the following:

(1) For a Saturday night date, the invitor extends an invitation on the immediately preceding Wednesday.

(2) The invitor calls the invitee at 3:30 p.m. or 9:30 p.m., or as near thereto as possible.

(3) In the course of the date, the parties eat a meal together.

(4) The invitor pays for meals and other date activities.

(5) Hopeless projects should be abandoned after three dates.

(6) Invitees and invitors should be screened in advance.

Comment:

a. Scope of boilerplate. The boilerplate terms and practices codified in this section have become standard after years of individual experimentation in blind dates. Parties may generally rely on boilerplate without further inquiry. Though individuals retain the option to contract around these default terms, attempts to depart from boilerplate may be regarded with suspicion. Due to the changing role of women in society, however, some boilerplate provisions are now being called into question.

b. Arranging the blind date. Wednesday has long been considered the proper day to call to arrange a Saturday night blind date. Calling on Tuesday is too eager; Thursday is arrogant; and Friday implies a belief that the invitee is available on demand. The Wednesday night caller acts reasonably, promoting the twin virtues of social efficiency and flexibility. Nine-thirty p.m., after dinner but before bedtime, is the most appropriate time to call an invitee at home. Three-thirty p.m. is preferable for a call to the office, because people generally doze at their desks or take a break at that time.

c. Date activities; meals strong recommended. The practice of eating a meal together on a blind date is overwhelmingly favored in all jurisdictions. An invitor chooses the date meal according to a multi-tiered structure that parallels equal protection analysis. Dinner is the highest tier, signaling the most serious intent, because it entails significant expense, the investment of an evening's leisure time, and increased efforts in primping. Just as a court, faced with an equal protection claim, employs strict scrutiny only in the most compelling situations, an invitor extends a dinner invitation only when the invitee is worthy of close scrutiny. Lunch, the lowest tier, is a casual part of the working day and is inherently less costly in time, energy, and expense. A lunch invitee is not subject to heightened scrutiny. If the first date is lunch, the invitor risks the appearance of ambivalence if he or she does not elevate the level of the second date to dinner.

In recent years, brunch has emerged as an intermediate tier. This meal resembles lunch in time and expense, but connotes more familiarity than the workaday lunch. With its overtones of unmade beds, unshowered bodies, and lazy bliss, brunch promotes an atmosphere of intimacy. Combined, these elements warrant greater scrutiny than that necessitated by lunch, although somewhat less than that required for dinner.

d. Invitor pays. Historically, the boilerplate rule has been that the man pays for dates. Most jurisdictions, however, now follow the rule that the invitor pay, regardless of sex. This shift demonstrates the evolution of the common law, which had presumed that the man and the invitor were always one and the same. It is no violation, but a fulfillment of the spirit of the common law, that dictates that the invitor pays.

e. Three-date rule. Parties often query how many dates it is reasonable to go on in order to assess the possibilities of a relationship. The three-date rule is now standard. Going on more than three dates, without the promise of a relationship, poses the risk of abusive practices, especially when one party insists on paying. Even in the absence of bad-faith dealings, however, the three-date rule is a viable period of limitation that allows both parties to a "nonstarter" to proceed with their life business. Any shorter period may pose potential risks as well. A party may foreclose otherwise promising opportunities before discovery is complete. It is the exceptional, albeit possible, case, where parties know they can settle the matter after the first date.

f. Screen before the blind date. It is reasonable, indeed advisable, for parties to engage in pre-date screening. Parties generally speak by telephone before the first date, but telephone evidence is often of limited reliability. Though parties should refrain from operating in reliance, such discussions do provide ample fodder for more thorough background check.

Independent investigation of the facts may entail interviews with classmates, work associates, and family members. Due diligence often includes an attempt to secure the party's picture. With the advent of facebooks in law offices, investment banks, and other large firms, photographs of most professionals are readily available for immediate faxing.

Jurisdictions are split as to whether due diligence should extend to allow the inclusion of all available information, or whether the hearsay principles of importation of the "fresh start" policy of the Bankruptcy Code and discourage consideration of past evidence that might unfairly tarnish an otherwise promising candidate. The majority view, however, is consistent with the liberal leanings of the Federal Rules of Evidence.

2.2 The Informal Acquaintance Model

In considering whether to enter into a relationship, informal acquaintances should:

(1) avoid any tendency toward willful blindness;

(2) establish a claim of right through possession; and

(3) refrain from stealing corporate opportunities.

Comment:

a. Abusive practices; willful blindness. A common injurious pattern seen in the informal acquaintance model is conspicuous flirting toward a friend or acquaintance by a party who lacks any romantic intentions. In such a situation, either or both parties may convince themselves that the other lacks or possesses romantic interest. Such fraudulent behavior encourages reliance and may foreclose the innocent party from pursuing other deals. Willful blindness on the part of the flirt is also inefficient, in that it causes a misallocation of resources. Parties may eventually face sanctions for their willful blindness.

Illustration:

B is in a relationship with C but spends an inordinate amount of time with D. It is obvious to all that D is pining for B. When asked by others, B insists that B and D are "just good friends," and acts mystified or outraged at any suggestion to the contrary. B can persist in this belief only by deliberately avoiding discussion with D, because if asked, D would gladly reveal D's feelings.

2.3 Aggravating Circumstances Model

Parties who enter into a relationship under aggravating circumstances must be careful to ensure that it will survive the dissipation of the forces that brought them together. Parties should be alert to undue influences, and proceed with extreme caution into rebound relationships.

Comment:

a. Circumstances conducive to undue influence. It is not uncommon for persons to meet at social gatherings at which the atmosphere is ripe for flirtation and sexual tension. Spontaneous passion may be induced by the consumption of alcohol or other intoxicants, or by the arousal of intense emotion, such as being present at a wedding, reunion, or office Christmas party. While such a beginning may lead to a successful relationship, parties should be aware of the role played by these undue influences. The so-called "morning after" is not too soon to contemplate the wisdom and authenticity of the previous night's events.

b. Factors indicating rebound. The most prevalent aggravating circumstance is the rebound. A person on the rebound is almost always unable to evaluate a new relationship with judgment unclouded by the events of the previous relationship. While quick turnaround into a new, successful relationship is possible, a true rebound relationship is one that a party joins merely to be positioned in a relationship.

Chapter Three

The Course of the Relationship

3.1 Jurisdiction

Adjudication of disputes is generally limited to actual cases or controversies. Accordingly, parties should:

(1) Refrain from deciding issues that are not yet ripe for discussion;

(2) Grant standing when appropriate; and

(3) Litigate moot disputes sparingly.

Comment:

a. Ripeness doctrine. A couple should not waste its resources by prematurely arguing issues that may resolve themselves. As in other areas of the law, claims should not be adjudicated until they are ripe.

Illustration:

A and B are a couple in the early stages of a relationship. A feels that B avoided and ignored A at a party. In such a situation, A should consider delaying discussion on grounds of ripeness. Over a number of parties, the issue might work itself out and preclude the need for costly explicit confrontation.

Circuits are split as to whether discussion about the relationship's status is ripe at all times. Some argue that parties are always entitled to a forum to discuss the other person's intentions about the relationship. Others contend that litigiousness in this area is tiresome and counterproductive. The Reporters advise adherence to reasonableness standards when parties raise issues about their relationship.

b. Special case: dealbreakers. Some topics are ripe for review at any time during the course of a relationship. These topics fall under the rubric of "dealbreakers." Dealbreakers are more than sticking points; they are irreconcilable differences. Parties are encouraged to identify dealbreaking issues as early as possible and to exit the relationship as soon as it is clear that a dealbreaker exists.

Illustration:

Jewish person, J, and Christian person, C, agree to pursue a relationship despite their religious differences. Later, they discover that J refuses to have a Christmas tree in the home, and C refuses to give up the tradition. If J and C cannot compromise on this issue, they are faced with a dealbreaker.

As the illustration shows, a dealbreaker may seem insignificant when taken in isolation. But in fact, such issues often symbolize larger differences. Other common dealbreakers include whether a party smokes, does not read books or newspapers, refuses to wear a wedding ring, or insists that the couple adopt the same last name after marriage.

Chapter Four

Dissolution

The most painful stage in a relationship is dissolution. This Chapter reviews the steps that constitute the dissolution process.

4.1 The Decision to Dissolve

Parties should consult precedent in evaluating a relationship's future. In evaluating precedent, however, parties must take care to avoid excessive reliance on outliers.

Comment:

a. Value of precedent. When deciding whether to end a relationship, parties may wish to consult the wealth of precedent generated by the experiences of similarly situated friends. Friends can convey information about their own cases, as well as references to other cases with which they are familiar. When consulting precedent, parties should take into account factors that may distinguish their cases. Differences in religion, ethnicity, race, age, or regional background may lead to very different outcomes in apparently similar cases. Whether the parties are in school or out of school may also have important consequences.

Illustration:

F considers breaking off a relationship with K because F believes K is not ambitious enough. F should consult prior cases concerning diverse topics such as: the benefit or detriment of matched ambition between parties; countervailing benefits of greater emphasis on family; one party's security with the other's greater ambition.

c. Special circumstance: long-distance relationships. An entire line of cases is dedicated to the special problems of long-distance relationships. No party should end a long-distance relationship without consulting this well-developed body of doctrine, which considers heavily litigated issues such as: frequency of communication and expenses arising therefrom; the ability to see other people; whether the relationship would benefit or suffer if the parties were together; and whether one party should sacrifice interests in order for the couple to live near each other.

--Gretchen Craft Rubin is the author of several books, most recently "Forty Ways to Look at JFK." Jamie G. Heller is a deputy managing editor of The Wall Street Journal Online. Ms. Rubin and Ms. Heller co-authored this piece while law students at Yale