Restatement of love (tentative draft).

• Author: Rubin, Gretchen

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.

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."(1) By distilling a universal, reasoned framework for relations of love, the Restatement will refute this widespread, but mistaken, view.

This Tentative Draft is not exhaustive. It merely begins the process of identifying and cataloging the law of love. Readers should not expect to find all applicable areas of the law treated fully and completely. The Reporters anticipate that the project will culminate in the compilation of a complete and authoritative code.

Organization. This Restatement consists of four Chapters. Chapter 1, Meaning of Terms, sets forth the basic definitions that this Draft employs. Chapter 2, Courtship, surveys the three principal models under which relationships begin: the blind date model, the informal acquaintance model, and the aggravating circumstances model. Chapter 3, The Course of the Relationship, examines four major legal areas in which developed doctrines shed light on the law of relationships: jurisdiction, procedure, property, and torts. Chapter 4, Dissolution, governs the various aspects involved in the act of dissolving a relationship.

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."(2) Some contend that such categories are mere constructs, designed to push people toward conventional relationships.(3) But law, by its very nature, relies upon a common understanding of the terms that define it.(4) This Restatement will employ the following neutral and modern terms in order to encompass the greatest number of possible situations.(5)

[sections] 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,(6) readers are cautioned that the term has somewhat different connotations in this field.

[sections] 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.

[sections] 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.

[sections] 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 purposes of this Restatement, however, one term is sufficient.

[sections] 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.(7) 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,(8) 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 meeting.

[sections] 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.(9)

c. Date activities; meals strongly recommended. The practice of eating a meal together on a blind date is overwhelmingly favored in all jurisdictions.(10) An invitor chooses the date meal according to a multi-tiered structure that parallels equal protection analysis.(11) 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 effort 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.(12) 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 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.(13)

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 pays, 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.(14)

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.(15) Going on more than three dates, without the promise of a relationship, poses...