Opening Statements

Worth the Effort?

When the American Law Institute published its long-awaited proposals for sweeping changes in divorce law in 2002, they were met with great fanfare. One academic predicted the proposals would be a “resounding success,” while the New York Times said they would likely have a “major impact” on the development of the law.

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But a recent empirical study of the recommendations indicates that the group’s proposals—formally known as the Principles of the Law of Family Dissolution—have been a resounding flop.

To date, only West Virginia has enacted legislation referencing any part of the ALI’s proposals, according to the study, American Law Insti­tute’s Principles of the Law of Family Dissolution, Eight Years After Adoption: Guiding Principles or Obligatory Foot­note? The study was published in the ABA’s Family Law Quarterly, fall 2008 edition.

West Virginia adopted principles relating to child custody in 2003; oth­er provisions deal with alimony, the division of property and the rights of unmarried cohabitating couples, gay and straight.

The ALI proposals have fared only slightly better in the courts. Accord­ing to the study, only 100 cases have cited the ALI’s principles since work on the group’s proposals began in 1990; that’s fewer than half the number of cases citing other treatises on tort law and remedies that were pub­lished around the same time. And the courts in those cases rejected the ALI’s proposals more often than they accepted them, by a ratio of more than 1½-to-1.

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Washington and Lee University law professor Robin Fretwell Wilson, an outspoken critic of the ALI proposals and co-author of the study, says the findings would appear to suggest that “people are not finding the principles very helpful.”

“I think the ALI has squandered an opportunity to do something really good here by getting way out in front of where the law is on some of these burning questions in family law,” she says.

But Arizona State University law professor Ira Mark Ellman, chief reporter for the ALI project, says the study’s methodology is flawed because it doesn’t accurately gauge the true impact of the principles on lawmakers and the courts.

“To suggest they’ve had virtually no impact on the law,” he says, “is really quite silly.”

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