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 court justices are called the seven potted geraniums. Make common law? These guys don’t even know when to pull over at a police stop! 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 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.
Update: To read the story of Operation Greylord you have to scroll well down into the web page. But it is a pretty good summary of what went down.
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