American Law Institute’s Principles of the Law of Family Dissolution, Eight Years after Adoption: Guiding Principles or Obligatory Footnote?

Abstract

The American Law Institute's Principles of the Law of Family Dissolution: Analysis and Recommendations (Principles) arguably represent the most sweeping attempt at family law reform in the last quarter century. The Principles consider many of the foundational questions in family law surrounding divorce, cohabitation, same-sex relationships, and parentage. Adopted in 2000, the Principles were published in 2002 to great fanfare. One author praised the project for bringing to “domestic relations law an increased measure of uniformity and fairness.” The New York Times predicted that the Principles “are likely to have a major impact.”

This Article presents the first comprehensive, empirical study of the Principles’ impact since their adoption in 2000. Unlike the ALI’s Restatements of the Law, which have been directed mainly at the courts, the Principles were directed at state legislatures as well. Thus, we examined the state code and legislative history databases in Westlaw and LexisNexis for any legislation referencing the Principles since to project’s inception in the early 1990s. Although one state, West Virginia, borrowed from the Principles in enacting child custody legislation, no state code section or proposed legislation has referenced the Principles since 1990.

The Principles have had more success with the courts, yet even this impact is slight and mixed. A mere 100 cases have cited to the Principles since 1990, less than half the number of cases that cite to two treatises published contemporaneously with the Principles. While the cases citing the Principles come from twenty-nine states and the U.S. Supreme Court, courts in six New England states account for almost half (48) of those citations. How the courts use the Principles’ recommendations tells an even starker story. Courts reject the Principles’ recommendations more often than they accept them, by a ratio of 1.5 to 1. But by far and away, courts use the Principles most often to bolster the court’s holding in a case that would have come out the same way in the absence of the Principles.

While it remains to be seen what will ultimately come of the Principles, it is evident that the Principles are not having a significant effect with the two groups at which they directed.

Keywords: Family Law, divorce, cohabitation, same-sex relationships, child custody legislation, Principles

JEL Classification: K10, K30