American law institute's principles of the law of family dissolution, eight years after adoption: Guiding principles or obligatory footnote?

Family Law Quarterly

Volumn 42, Issue 3, 2008, Pages 573-618

  Clisham, Michael R ^a   Wilson, Robin Fretwell ^b,c  

^a Bangor Hydro Electric Company   (United States)

^b Department of Law ^*

^c WASHINGTON AND LEE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 69249127981     PISSN: 0014729X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (206)

1. Am. Law Inst. (ALI), Principles of the Law of Family Dissolution: Analysis and Recommendations (2002) [hereinafter Principles].
2. Geoffrey Hazard, Foreword to Principles of the Law of Family Dissolution: Analysis and Recommendations, at xi (Tentative Draft No. 3 pt. I, 1998) [hereinafter Principles Tentative Draft No. 3].
3. The Principles were adopted by the ALI on May 16, 2000, in Washington, D.C.
4. See Principles, supra note 1. The Principles were not published in final form, however, until 2002.
5. See David Westfall, Unprincipled Family Dissolution: The ALI's Recommendations for Division of Property, in Reconceiving the Family: Critique on the American Law Institute's Principles of the Law of Family Dissolution 176, 176-77 (Robin Fretwell Wilson ed., 2006) [hereinafter Reconceiving the Family] (discussing adoption of the Principles).
6. See Symposium, Gender Issues in Divorce: Commentaries on the American Law Institute's Principles of the Law of Family Dissolution, 8 Duke J. Gender L. & Pol'y 1 (2001) [hereinafter Gender Issues in Divorce].
7. Mary Combs, Insiders and Outsiders: What the American Law Institute Has Done for Gay and Lesbian Families, 8 Duke J. Gender L. & Pol'y 87, 106 (2001).
8. Martha Ertman, The ALI Principles' Approach to Domestic Partnership, 8 Duke J. Gender L. & Pol'y 107, 117 (2001).
9. See infra Part V.
10. See David Caruso, Think Tank: Family Law Should Be Expanded to Include Homosexual Unions, Associated Press, Dec. 5, 2002
11. Robert Pear, Legal Group Urges States to Update Their Family Law, N.Y. Times, Nov. 30, 2002, at A
12. Karen S. Peterson, Love and the Law: A Reality Check, USA Today, Dec. 4, 2002, at D8
13. Patricia Wen, Cohabitators' Pacts Tie the Legal Knot for Unwed, Boston Globe, at Al
14. Talk of the Nation: New Principles for Family Law (National Public Radio broadcast Jan. 15, 2003) [hereinafter Talk of the Nation].
15. Pear, supra note 8, at A.
16. Hazard, supra note 2, at xv.
17. See Patrick Parkinson, The Past Caretaking Standard in Comparative Perspective, in Reconceiving the Family, supra note 3, at 446-49
18. Elizabeth S. Scott, Pluralism, Parental Preference, and Child Custody, 80 Cal. L. Rev. 615 (1992).
19. Talk of the Nation, supra note 8 (statements of Grace Ganz Blumberg, a drafter of the Principles and professor at the University of California, Los Angeles School of Law)
20. cf. infra Part VI; Marsha Garrison, Marriage Matters: What's Wrong with the ALI's Domestic Partnership Proposal, in Reconceiving the Family, supra note 3, at 305.
21. See David D. Meyer, Partners, Care Givers, and the Constitutional Substance of Parenthood, in Reconceiving the Family, supra note 3, at 47, 47-53.
22. Press Release, American Law Institute, American Law Institute Publishes Principles of the Law of Family Dissolution (May 15, 2002), available at http://www.ali.org/ali/pr051502.htm.
23. Id. at 291.
24. See Mark Hansen, A Family Law Fight: ALI Report Stirs Hot Debate Over Rights of Unmarried Couples, 89 A.B.A. J. 20 (2003).
25. Id. It is important to note that this figure does not assess the treatment of these citations and whether the cases adopted or rejected the Principles.
26. Id. at 291.
27. See supra note 3.
28. The Principles have been a subject of scholarly interest for one of us, who has edited the only book-length examination of the ALI's proposals and written individual critiques of the Principles' custody proposals.
29. See, e.g., Reconceiving the Family, supra note 3
30. Robin Fretwell Wilson, Blind Trust: The American Law Institute's Proposed Treatment of De Facto Parents, in Pravni Zivot [Legal Life] Nos. 9-10 (Ass'n of the Jurists of Serbia, 2007) [hereinafter Wilson, Blind Trust]
31. Robin Fretwell Wilson, Undeserved Trust: Reflection on the American Law Institute's Treatment of De Facto Parents, in Reconceiving the Family, supra note 3, at 90 [hereinafter Wilson, Undeserved Trust].
32. Adam Liptak, When Rendering Decisions, Judges Are Finding Law Reviews Irrelevant, N.Y. Times, Mar. 19, 2007, at A.
33. Id. at 291.
34. Harry D. Krause, Comparative Family Law: Past Traditions Battle Future Trends-and Vice Versa, in The Oxford Handbook of Comparative Law 1099 (Mathias Reimann & Reinhard Zimmermann eds., 2006).
35. See generally Hansen, supra note 16.
36. -160P.3d231 (Ariz. 2007).
37. Id. at 235.
38. With the exception of Mississippi, all codes covered in the subject database predate 1990. Mississippi comes forward from 1991.
39. Each of the codes in the subject database is current.
40. Each of the codes in the subject database is current.
41. Coverage varies with each jurisdiction. The reader should consult LexisNexis (Lexis) for a more in-depth description.
42. This database contains materials from forty-seven states beginning January 1,2001, and is continually updated.
43. This database contains materials from thirty-seven states, thirty-four of which have leg islative history materials from 2000 forward or earlier. Materials for Oregon and Arkansas dat from 2001 forward. The legislative history materials for Nebraska date from 2003 forward.
44. Full coverage in the subject database comes forward from 1994
45. selective coverage js available prior to 1994. We also searched Lexis for law journal hits, which yielded 466 ciations. Because the Westlaw results dwarfed the Lexis results, we felt comfortable taking me larger of these two sets, especially since the impact on academics is not questioned.
46. This is a comprehensive database covering hundreds of news sources in En' lish. Consult Lexis for a more in-depth description.
47. This database provides comprehensive coverage of newspapers, magazines, jo mals, newsletters, congressional testimony, and government press releases. Coverage varies opending on the source. Consult Westlaw for a more in-depth description.
48. No legislature prior to the Principles had adopted the approximation standard. See infra Part III. See generally Parkinson, supra note 11.
49. Of course, the "parent by estoppel" idea had some traction in case law prior to the Principles. See Principles, supra note 1, § 2.03 cmt. b.
50. On March 5, 2008, we searched for "American law institute principles of the law of family dissolution" in all topics with the date.
51. On March 5, 2008, we searched "American law" (exact phrase) because the website's search limitations only permitted that many characters. This yielded a null set. We also searched "ALI" (exact phrase) and received a null set.
52. On March 5, 2008, we searched "American law institute principles of the law of family dissolution" and received a null set.
53. As Appendix 6 shows, there were 116 discrete references to the Principles, one of which was to a law review article containing the term in its title, yielding 115 total treatments.
54. -814 N.E.2d 385 (Mass. App. Ct. 2004).
55. See, e.g., Stitham v. Henderson, 768 A.2d 598 (Me. 2001). In Stitham, the majority used Maine statutes to determine that the district court had discretion in deciding whether Henderson retained parental and contact rights in a child after a DNA test showed another man was the biological father. The concurrence cited the de facto parent test of the Principles, suggesting that it is a "developing" legal area and could be used in the future.
56. See, e.g.. Hoover (Letourneau) v. Hoover, 764 A.2d 1192 (Vt. 2000). In Hoover, the majority stated that the issue of adoption of the Principles was not before them. The dissent argued that the court should utilize the Principles to determine custody in cases where one parent is relocating. The dissent criticized the governing state statute, Vt. Stat. Ann. tit. 15, § 665 (2000), for negative inferences it makes about relocations and believed that the Principles' standard would create fairer results in relocation hearings.
57. An emblematic example of a straight adoption is Ireland v. Ireland, 717 A.2d 676 (Conn. 1998). There, the parties received joint custody of their son at divorce, with primary physical custody awarded to the mother, Irene. Some time later, Irene remarried. When her second husband's job forced him to move to California, she informed the court of her intent to relocate with her child. The child's father objected and obtained an injunction temporarily stopping the move until the case could be adjudicated.
58. The trial court placed the burden of proof on the mother, as the party seeking relocation, to show that the proposed relocation was in the child's best interests. The trial court then found that Irene failed to meet this burden and enjoined the child's relocation. The intermediate appellate court affirmed, and the case was appealed to the Supreme Court of Connecticut.
59. The matter of where the burden of proof in a relocation case should properly rest was an issue of first impression. Ultimately, the Connecticut Supreme Court adopted the standard put forward by the ALI in Principles Tentative Draft No. 3, supra note 2, § 2.20(4)(a): an initial burden of proof rested upon the party proposing relocation to show that the move was for a "legitimate purpose" and that it was "reasonable in light of that purpose." Ireland, 717 A.2d at 682. If the moving party can prove both by a preponderance of the evidence, the burden shifts and the party seeking to block the relocation must show that the move was not in the child's best interests.
60. This outright adoption of the Principles' relocation provision governed in Connecticut until it was legislatively abrogated by section 46(b)-56 of the Connecticut General Statutes, which replaced the burden-shifting test. See Hardy-Harris v. Harris, No. FA074024647S, 2008 WL 2039259 (Conn. Super. Ct. Apr. 21, 2008) ("In 2006, the General Assembly amended the General Statutes basically overruling Ireland and eliminating the burden shifting scheme and setting forth the standard to be followed in postjudgment [sic] cases.").
61. No. C1V.A. AP-99-48, 2000 WL 33675353 (Me. June 27, 2000).
62. Id. at *1.
63. -840 N.E.2d 918 (Mass. 2006). Sharlene is a pseudonym for Haleigh Poultrie, an eleven-year-old girl who suffered injuries severe enough to place her in a coma. Haleigh's adoptive mother and her mother's cohabiting boyfriend were charged with abusing her and causing the injuries. Haleigh's adoptive mother later died in a murder-suicide with the mother's grandmother. The Massachusetts Department of Social Services took temporary custody of the child and moved to request that a "do not resuscitate" order be filed for her. However, the day after the Massachusetts Supreme Judicial Court authorized the removal of Haleigh's ventilator and feeding tube, doctors announced that Haleigh was breathing on her own and responding to commands. The State's charges against the cohabiting boyfriend for assault and battery on a child with substantial bodily injury, assault and battery on a child with bodily injury, three counts of assault and battery with a dangerous weapon, and one count of assault and battery will go to trial later this year. See Patricia Wen, The Little Girl They Couldn't See, Boston Globe, July 6, 2008, http://www.boston. com/news/local/articles/2008/07/06/the-little-girl-they-couldnt-see/
64. Buffy Spencer, Lawyer to Challenge Competency of Girl Stepdad Allegedly Beat, Republican Newsroom, July 1, 2008, http://www.masslive.com/news/index.ssf/ 2008/07/lawyer-plans-to-chalIenge-comp.html?category=Crime+category=Westfield.
65. See Wilson, Blind Trust, supra note 20.
66. -711 N.E.2d 165 (Mass. 1999).
67. Sharlene, 840 N.E.2d at 926.
68. Id. at 291.
69. -972 P.2d 16 (N.M. Ct. App. 1998).
70. Id. at 20.
71. -792 N.E.2d 635 (Mass. 2003).
72. -845 A.2d 1146 (Me. 2004).
73. -761 A.2d 291 (Me. 2000).
74. -768 A.2d 598 (Me. 2001).
75. C.E.W., 845 A.2d at 1152 n.13.
76. Id. at 291.
77. -530 U.S. 57 (2000).
78. Id. at 98 (Kennedy, J., dissenting).
79. Id. at 101 (citing Principles Tentative Draft No. 3, supra note 2, at 2 & n.2).
80. Id. at 291.
81. -813 N.E.2d 1244 (Mass. 2004).
82. Id. at 1246.
83. Id. at 1251.
84. Id. at 1253.
85. Id. at 1254 n. 13
86. Id. at 291.
87. No. 51463-6-1, 2004 WL 1465949 (Wash. Ct. App. June 23, 2004).
88. Id. at *9.
89. -170 P.3d 601 (Wash. Ct. App. 2007).
90. Id. at 605.
91. -459 S.E.2d 597 (Ga. Ct. App. 1995).
92. -144 S.W.3d 820 (Ky. 2004).
93. See generally J. Cohen, A Coefficient of Agreement for Nominal Scales, 20 Educ. & Psychol. Measurement 37 (1960).
94. See J.R. Landis & G.G. Koch, The Measurement of Observer Agreement for Categorical Data, 33 Biometrics 671, 671-79 (1977).
95. In the interests of space, Appendix 7 is available at Wash. & Lee Univ. Sch. of Law, Robin Fretwell Wilson Biography, http://law.wlu.edu/faculty/ profiledetail.asp?id=216 (last visited June 5, 2008), together with all the appendices to this article.
96. -740 So. 2d 1153 (Fla. Dist. Ct. App. 1999).
97. See id. at 1158.
98. See Figure 2.
99. A memorandum in support of Assembly Bill 10446, which would change New York's spousal support laws, cites the Principles. See N.Y. State Assembly, Bill Summary-A10446, http://assembly.state.ny.us/leg/?bn=A10446 (last visited June 5, 2008). As of this writing, Assembly Bill 10446 remains in the judiciary committee of the New York state assembly and likely will not come out of committee.
100. In code archives searches, many code sections appeared as results multiple times, once for each year the code was archived. In the chart, the total number of results appears first. The number inside the parentheses represents the number of unique code sections the search generated, counting a code section only once even if it appeared under multiple years.
101. Results between databases vary. This number represents the total number of independent code sections generated by each search, counting each code section that appeared exactly once.
102. The results generated by each search also overlap to a degree. This number represents the total number of code sections generated by this search that were not generated by any of the searches listed above it in the table. Thus, the eighteen results for the "ALI abbreviated, independent terms" search represents eighteen state code sections generated by this search that had not appeared in the results of the search above it, "full cite, independent terms."
103. See Katharine T. Bartlett, Child Custody in the 21st Century: How the American Law Institute Proposes to Achieve Predictability and Still Protect the Individual Child's Best Interests, 35 Willamette L. Rev. 467 (1999)
104. Katharine T. Bartlett, U.S. Custody Law and Trends in the Context of the ALI Principles of the Law of Family Dissolution, 10 Va. J. Soc. Pol'y & L. 5 (2002)
105. Brian H. Bix, Commentary: Premarital Agreements in the ALI Principles of Family Dissolution, 8 Duke J. Gender L. & Pol' y 231 (2001)
106. Margaret F. Brinig, Feminism and Child Custody Under Chapter Two of the American Law Institute's Principles of the Law of Family Dissolution, 8 Duke J. Gender L. & Pol'y 301 (2001)
107. Craig W. Dallon, Reconsidering Property Division in Divorce Under Nebraska Law in Light of the ALI's Principles of the Law of Family Dissolution: Analysis and Recommendations, 37 Creighton L. Rev. 1 (2003)
108. Craig W. Dallon, The Likely Impact of the ALI Principles of the Law of Family Dissolution on Property Division, 2001 BYU L. Rev. 891 (2001)
109. Kathy T. Graham, Child Custody in the New Millennium: The ALI's Proposed Model Contrasted with Oregon's Law, 35 Willamette L. Rev. 523 (1999)
110. Leslie Joan Harris, The Proposed ALI Child Support Principles, 35 Willamette L. Rev. 717 (1999)
111. J. Thomas Oldham, ALI Principles of Family Dissolution: Some Comments, 1997 U. ILL. L. Rev. 801 (1997)
112. John C Sheldon, Anticipating the American Law Institute's Principles of the Law of Family Dissolution, 14 Me. Bar J. 18 (1999)
113. Merle H. Weiner, Domestic Violence and Custody: Importing the American Law Institute's Principles of the Law of Family Dissolution into Oregon Law, 35 Willamette L. Rev. 643 (1999)
114. David Westfall, Forcing Incidents of Marriage on Unmarried Cohabitants: The American Law Institute's Principles of Family Dissolution, 76 Notre Dame L. Rev. 1467 (2001).
115. For a complete list of cites, see Appendix 1, Wash. & Lee Univ. Sch. of Law, supra note
116. Principles, supra note 1, ch. 1.
117. Principles, supra note 1, ch. 1.
118. See generally id. ch. 2.
119. We did not examine the sixteen references in the Mississippi Code Annotated to the Principles because the editors of the Lexis database did not supply pinpoint citations to specific sections of the Principles. The references appeared under the heading "Practice Reference," which included products from Lexis's Matthew Bender division, such as Family Law Litigation Guide with Forms: Discovery, Evidence, Trial Practice and Child Custody and Visitation Law and Practice, and products from Lexis's Mitchie division, such as Divorce Practice Handbook by Lynne Z. Gold-Bikin, Stephen A. Kolodny, Allen R. Koritzinsky, and Barbara A. Stark. The Principles appear to be cited as a general title for consideration in family law cases and not because they have any application or relevance to Mississippi law.
120. See Appendices 2 and 3 for a complete analysis, available online at Wash. & Lee Univ. Sch. of Law, supra note 79.
121. Cf. S.D. Codified Laws § 25-4-45 (2008) (allocating custodial responsibility according to the best interests of the child)
122. Utah Code Ann. § 30-3-10.2 (2008) (allocating custodial responsibility according to the best interests of the child based upon enumerated factors)
123. id. § 30-3-35 (establishing a default, minimum parent-time schedule to apply to children five to eighteen years of age when the parties do not agree to a parent-time schedule, taking into account weekday evenings, alternating weekends, holidays, etc)
124. id. § 30-3-35.5 (establishing a default, minimum parent-time schedule to apply to children under five years of age)
125. Principles, supra note 1, § 2.08 (allocating custodial time according to past caretaking activities).
126. Cf. S.D. Codified Laws § 25-5-45.4 (permitting a court to appoint a guardian ad litem (GAL) if mediation is not feasible to represent the child when there are allegations of abuse or neglect and the court determines that it is in the best interests of the child to have counsel appointed for him or her)
127. Utah Code Ann. § 30-3-11.2 (allowing a court to appoint counsel to represent a child in any instance where such representation appears to be in the best interests of the child)
128. Principles, supra note 1, § 2.13 (providing for the appointment of a GAL to represent a child's interests and providing that the court shall specify the terms of appointment, including the GAL's role, duties, and authority).
129. Utah Code Ann. § 30-3-10.4
130. Principles, supra note 1, § 2.15.
131. th ed. 2002) (discussing enhancements added by the publisher primarily as "Notes of Decisions").
132. See Hansen, supra note 16.
133. A full set of search results reproduced from this backstop search is available in Appendix 4, available online at Wash. & Lee Univ. Sch. of Law, supra note 79.
134. Appendix 5 contains a complete list of these results with analysis and is available online at Wash. & Lee Univ. Sch. of Law, supra note 79.
135. In re Sarah S. v. James T., 751 N.Y.S.2d 61 (App. Div. 2002).
136. All these were "false positives" that appeared when one heading to an annotation ended with the word "parent" and the next independent heading began with the word "estoppel." See Figure 6.
137. See supra note 98.
138. See supra note 96.
139. The search yielded eighty-one cases, one of which, Wendt v. Wendt, No. FA96 0149562 S, 1998 WL 161165 (Conn. Super. Ct. Mar. 31, 1998), was broken into five proceedings, giving seventy-six unique cases.
140. The search yielded 104 cases. Four hits were for Wendt, while two hits were for another case, T.F. v. B.L., 813 N.E.2d 1244 (Mass. 2004), giving a total of 100 unique hits.
141. The search "Principles of Family Dissolution" did not produce any new unique results. Searches in Westlaw and Lexis both returned only Hoover (Letourneau) v. Hoover, 764 A.2d 1192 (Vt. 2000).
142. See supra Part II.C.2. As Appendix 7 indicates, several cases are no longer controlling authority. See Wash. & Lee Univ. Sch. of Law, supra note 79.
143. See supra Part II.C.
144. See supra note 3.
145. See Appendix 6.
146. Id. at 291.
147. Id. at 291.
148. One case cited to the preface of a tentative draft and is not counted here.
149. See, e.g., Melanie L. Jacobs, Why Just Two? Disaggregating Traditional Parental Rights and Responsibilities to Recognize Multiple Parents, 9 J.L. & Fam. Stud. 309 (2007).
150. A complete analysis of the line of cases analyzing each chapter, together with an analysis of the positive and negative treatment of each, is provided in Appendix 8, available online at Wash. & Lee Univ. Sch. of Law, supra note 79.
151. See id.
152. infra Part VI.
153. A full breakdown of all cases citing Chapter 2, broken down code by code, appears in Appendix 8, Wash. & Lee Univ. Sch. of Law, supra note 79.
154. Id. at 291.
155. Id. at 291.
156. Id. at 291.
157. Id. at 291.
158. Id. at 291.
159. Id. at 291.
160. For a more complete breakdown of the court's treatment of Chapter 5, see id.
161. Id. at 291.
162. See generally Hansen, supra note 16.
163. See Appendix 8, Wash. & Lee Univ. Sch. of Law, supra note 79.
164. Id. at 291.
165. As just one sampling, see, for example, Nancy D. Polikoff, Making Marriage Matter Less: The ALI Domestic Partner Principles Are One Step in the Right Direction, 2004 U. Chi. Legal F. 353
166. Julie Shapiro, De Facto Parents and the Unfulfilled Promise of the New ALI Principles, 35 Williamette L. Rev. 769 (1999)
167. Westfall, supra note 3; Westfall, supra note 87.
168. D. Kelly Weisberg, Family Law Code: Selected States and ALI Principles (Student ed. 2006-07)
169. Reconceiving the Family, supra note 3.
170. We note, however, that a handful of chapters known to us have examined the Principles. See, e.g., Robin Fretwell Wilson, The Harmonisation of Family Law in the United States, in European Challenges in Contemporary Family Law 46 (Katharina Boele-Woelki & Tone Sverdrup eds., 2008)
171. Nancy G. Maxwell, Unification and Harmonization of Family Law Principles: The United States Experience, in 4 European Family Law, Perspectives for the Unification and Harmonisation of Family Law in Europe 49 (Katharina Boele-Woelki ed, 2003).
172. See, e.g., David Westfall, Unprincipled Family Dissolution: The American Law Institute's Recommendations for Spousal Support and Division of Property, 27 Harv. J.L. & Pub. Pol'y 917 (Sum. 2004).
173. See, e.g., Symposium, The ALI Principles of the Law of Family Dissolution, 2001 BYU L. Rev 857
174. Symposium, The American Law Institute's Principles of the Law of Family Dissolution, 4 J.L. & Fam. Stud. 1 (2002)
175. Gender Issues in Divorce, supra note 4.
176. See Figure 2.
177. See Mersky & Dunn, supra note 96, at 233 ("As a general rule, state legislatures do not publish their debates, committee reports, or transcripts of hearings held before legislative committees. Yet the need for these sources is often just as great, since state laws can contain provisions that are vague and ambiguous and need clarification.")
178. See Liptak, supra note 21, at A. Judge Reena Raggi stated that "if the academy does want to change the world, it does need to be part of that world."
179. Id. at 291.
180. Id. The declining relevance of academic legal work stems also from the burgeoning number of law journals and ballooning court dockets over the same timeframe.
181. The publication of The Law of Torts falls directly between the approval and promulgation of the Principles by the ALI in 2000 and the publication of the Principles in 2002. The 1993 publication of The Law of Remedies came after the beginning of the Principles project and only two years before the publication of the Principles First Tentative Draft in 1995.
182. The search logic for The Law of Torts was: Dobbs /3 "Law of Torts"/10 2001; the logic for The Law of Remedies was: Dobbs/3 "Law of Remedies"/10 1993. The results were reviewed to check that the edition of the treatise being cited was the correct one.
183. Of course, if more tort law or remedies cases are published than family law cases, this could explain why courts cite Dobbs' two treatises more frequently than the Principles. At least for torts, this is not the case. Westlaw's Topical Practice Area database contains listings for tort law and family law cases, but not remedies. Using this database, we examined the total number of published state court opinions in family law and tort law since 1990, the year the ALI began its work on the Principles. From 1990 to August 8,2008, there have been 193,205 family law opinions published, compared to 188,595 tort law opinions.
184. In 1999, the Vermont Supreme Court ordered its state legislature to develop a system that provided same-sex couples with traditional marriage benefits and protections. See Baker v. State, 744 A.2d 864 (Vt. 1999). In response, the Vermont legislature passed the Vermont Civil Union law, which went into effect on July 1, 2000. See No. 91. An Act Relating to Civil Unions., http://www.leg.state.vt.us/docs/2000/acts/act091.htm (last visited June 5, 2008).
185. See Hansen, supra note 16.
186. See Appendix 8, Wash. & Lee Univ. Sch. of Law, supra note 79.
187. See Principles, supra note 1, § 6.01. The Principles define domestic partners as "two persons of the same or opposite sex, not married to one another, who for a significant period of time share a primary residence and a life together as a couple." Id.
188. Id. § 6.01 cmt. a.
189. See 2003 Me. Laws 672.
190. N.H. Rev. Stat., Ch. 457-A (2008)
191. Haw. Rev. Stat. Ch. 572c (2008).
192. See Garrison, supra note 12
193. Jean Hoefer Toal, A Response to the Principles' Domestic Partnership Scheme, in Reconceiving the Family, supra note 3, at 425.
194. See, e.g., Me. Rev. Stat. Ann. tit. 22, § 2710 (2008)
195. Haw. Rev. Stat. ch. 572C (2008).
196. See generally Wilson, Undeserved Trust, supra note 20.
197. See generally Westfall, supra note 3 (analyzing the effect of the ALI's imprimatur on the Principles)
198. Lynn D. Wardle, Introduction to the Symposium, 4 J. L. & Fam. Stud. 1 (2002).
199. See Carl Schneider, Elite Principles: The ALI Proposals and the Politics of Law Reform, Afterword to Reconceiving the Family, supra note 3, at 489, 491 (remarking that the ALI has "wielded influence beyond the fantasies of its founders").
200. Restatement (Second) of Torts (1965).
201. Krause, supra note 23, at 1099. By contrast, commentators have noted that "just as the law itself cannot stay abreast of a dynamic society, the ALI's restatements will usually tag a little behind where the common law is leading."
202. Doug Rendleman, Restating Restitution: The Restatement Process and Its Critics, 65 Wash. & Lee L. Rev. 933, 944 (2008).
203. See Schneider, supra note 152, at 491 ("The ALI has wielded influence beyond the fantasies of its founders. The Model Penal Code and the Restatements are as close to binding precedent as nongovernmental authority can be .. .").
204. th Anniversary 11, 14 (1973) (emphasis added).
205. References to the Principles may be either to the final adopted version published in 2002 or to earlier tentative versions. For a more complete Appendix 6, please see Wash. & Lee Univ. Sch. of Law, supra note 79.
206. This treatment was not coded because the court cites a law review article that contained the Principles in the title but the court did not address a specific section of the Principles or otherwise mention the Principles.