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 1. BLAISE PASCAL, PENSƒES 154 (A.J. Krailsheimer trans., Penguin Books 1966) (1670). 2. For leading criticism of "outworn" distinctions, see Rowland v. Christian, 443 P.2d 561, 567 (Cal. 1968): Whatever may have been the historical justifications for the common law distinctions [among trespasser, licensee, and invitee], it is clear that those distinctions are not justified in the light of our modern society and that the complexity and confusion which has arisen is not due to difficulty in applying the original common law rules . . . but is due to the attempts to apply just rules in our modern society within the ancient terminology. 3. Cf. Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. L. REV. 809, 812, 816 (1935) (criticizing "vivid fictions and metaphors of traditional jurisprudence"). 4. See Wesley N. Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 YALE L.J. 16, 20 (1913) (defining and discussing "the basic conceptions of the law,-the legal elements that enter into all types of jural interests" in order to clarify legal reasoning). 5. The Restatement does not discuss parties in gendered terms, nor does it address concerns peculiar to one sex or the other. To be sure, scholars have suggested that men and women may have different perspectives on many subjects. See, e.g., CAROL GILLIGAN, IN A DIFFERENT VOICE 1 (1982) (noting "distinction in these [male and female] voices, two . . . modes of describing the relationship between other and self"). The Reporters have rejected this model, however, out of a commitment to the vision of ordered law that has shaped the work of the Restatements since the time of Christopher Columbus Langdell. As Grant Gilmore characterized it, the "Langdellian revolution" was founded on the belief, still powerful today, that "there really is such a thing as the one true rule of law, universal and unchanging, always and everywhere the same-a sort of mystical absolute." GRANT GILMORE, THE DEATH OF CONTRACT 97-98 (1974) (footnote omitted). For the same reason, the Restatement does not explore the doctrinal nuances that may distinguish heterosexual and homosexual relationships. 6. RESTATEMENT (SECOND) OF TORTS ¤ 1 (1965) ("The word `interest' is used throughout the Restatement of this Subject to denote the object of any human desire."). 7. Such communities include, e.g., Jewish Westchester, WASPy Main Line Philadelphia. 8. The work-based variant of the informal acquaintance model is high risk. If it goes awry, a party can be left without romance and without a job. Cf. BURTON G. MALKIEL, A RANDOM WALK DOWN WALL STREET 310 (1990) ("Whatever the . . . objectives, the investor who's wise diversifies."). 9. The advent of answering machines and voice mail complicates the traditional bright-line rules governing the most appropriate times to call. The question necessarily arises: If the person is unavailable, is it strategically wise to leave a message? Some of the legal issues raised by the intersection of courtship and technology are reported in Peter H. Lewis, Persistent E-Mail: Electronic Stalking or Innocent Courtship?, N.Y. TIMES, Sept. 16, 1994, at B18. The vast changes wrought by modern technology in this area warrant further examination. For a related discussion about how actors make strategic decisions when faced with a combination of choices and goals, see ROBERT AXELROD, THE EVOLUTION OF COOPERATION (1984); ERIC RASMUSEN, GAMES AND INFORMATION: AN INTRODUCTION TO GAME THEORY (1989). 10. Nonmeal activities, such as sporting events or visits to museums, are not uncommon blind date activities, but they are inherently more risky because the parties' tastes are unknown to one another. Parties are advised to determine their own risk preferences, i.e., whether they prefer a high-risk, high-yield strategy, or whether they are more risk averse. For a discussion of risk/yield strategy, see generally WILLIAM A. KLEIN & JOHN C. COFFEE, JR., BUSINESS ORGANIZATION AND FINANCE: LEGAL AND ECONOMIC PRINCIPLES 227-35 (1993). 11. See, e.g., Frontiero v. Richardson, 411 U.S. 677 (1973). 12. Note that breakfast, although formally a meal, is generally discouraged for a date, because it is frequently either wholly personal or taken in a business setting. If people do not have to work over breakfast, they resent a disruption of their morning routine. 13. Just as the contours of brunch are uncertain, as compared with the well-established dates of lunch and dinner, the new tier of intermediate scrutiny has been criticized for its failure to afford clear guidance. See Craig v. Boren, 429 U.S. 190, 220-21 (1976) ("[The] Court's [standard of review] apparently comes out of thin air. . . . How is this Court to divine what objectives are important?") (Rehnquist, J., dissenting). 14. See OLIVER W. HOLMES, THE COMMON LAW 32 (Mark DeWolfe Howe ed., Little, Brown & Co. 1963) (1881) ("The truth is, that the law is always approaching, and never reaching, consistency. It is forever adopting new principles from life at one end, and it always retains old ones from history at the other, which have not yet been absorbed or sloughed off."). 15. It is unclear whether a similar cut-off point applied with equal rigor in previous times. For example, in "the Fifties," parties purportedly dated more than three times, and dated more than one person at a time, before "going steady." 16. There are reported cases of "churning" in dating, i.e., of continuous dating where the nonpaying party is simply seeking to tour the New York restaurant circuit. For related doctrine in the securities context, see Armstrong v. McAlpin, 699 F.2d 79, 90 (2d Cir. 1983) (defining churning as "overtrading," i.e., "excessive rate of turnover in a controlled account for the purpose of increasing the amount of commissions") (citations omitted). 17. See, e.g., Hickman v. Taylor, 329 U.S. 495, 507 (1947) ("No longer can the time-honored cry of `fishing expedition' serve to preclude a party from inquiring into the facts underlying his opponent's case. Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.") (footnote omitted). 18. The information is not fully reliable, because a certain amount of "puffing," by both the daters and intermediaries, is considered acceptable. The standard of reasonableness in puffing is derived from securities law. See Carl W. Schneider, Nits, Grits, and Soft Information in SEC Filings, 121 U. PA. L. REV. 254, 269 (1972) ("While blatant puffing is not considered proper under the . . . law, investors realize that, within a permissible range, managements may tend to be fairly optimistic, and management opinion can be evaluated in that light."). For an alternate perspective on puffing, see Carlill v. Carbolic Smoke Ball Co., [1893] 1 Q.B. 256, 261 (C.A. 1892) (distinguishing between "distinct promise" and "a mere puff" in advertising context). 19. Rule 11 requires that parties engage in a "reasonable inquiry" so that beliefs are "well-grounded in fact." FED. R. CIV. P. 11. Parties occasionally resort to drastic measures, such as hiring private detectives to conduct background checks. See Dirk Johnson, Boy Meets Girl, '89, Can Be a Detective Story, N.Y. TIMES, Dec. 10, 1989, at 1. Overzealous investigations, however, may discourage potential partners. Broker-dealers, intermediaries who set up the parties, must exercise caution in supplying them with background information. See Hanly v. SEC, 415 F.2d 589, 596 (2d Cir. 1969) (holding that broker-dealers must have adequate basis for recommendations made to clients). Parties should be aware that a broker-dealer may not be a disinterested provider of information but may be an advocate for one party. Ideally, however, a broker-dealer acts as what the Model Rules term a "lawyer for the situation," who serves neither party individually but instead serves both their interests simultaneously. MODEL RULES OF PROFESSIONAL CONDUCT Rule 2.2 cmt. (1983) (suggesting role in "seeking to establish or adjust a relationship between clients on an amicable and mutually advantageous basis"); see also GEOFFREY C. HAZARD, JR., ETHICS IN THE PRACTICE OF LAW 58-68 (1978) (describing Brandeis in role of "lawyer for the situation"). If the date is successful and the pair, later as a couple, spar, it is advisable at that point that the matchmaker interplead. See 28 U.S.C. ¤ 1335 (1988) ("statutory" interpleader); FED. R. CIV. P. 22 ("rule" interpleader). 20. FED. R. EVID. 401-12 (governing relevancy and its limits); id. 601-15 (governing, inter alia, reliability of witnesses). 21. See 11 U.S.C. ¤ 727 (1988) (providing for discharge of indebtedness). 22. Parties who wish to conduct relationships armed with abundant information are advised to pursue the informal acquaintance model, which permits greater low-level discovery. 23. For a more general discussion of willful blindness (also called conscious avoidance), see GLANVILLE WILLIAMS, CRIMINAL LAW, THE GENERAL PART ¤ 57, at 157 (2d ed. 1961) (defining willful blindness as circumstance in which "party has his suspicion aroused but then deliberately omits to make further enquiries, because he wishes to remain in ignorance"). 24. The classic case of Pierson v. Post, 3 Cai. R. 175 (N.Y. Sup. Ct. 1805), established that "mere pursuit" does not confer possession. In love, however, pursuit may in certain situations grant a temporary right, albeit one that is not clearly defined. This right is subject to a reasonable statute of limitations. The impossibility of constructing a bright-line rule determining the length of the limitations period requires the exercise of discretion by all parties, so that no one is unfairly denied the chance to pursue a relationship for an unreasonably long period of time. 25. Justice Livingston's dissent in Pierson v. Post rings true when it asks: But who would . . . pursue the windings of this wily [bi]ped, if, just as night came on, and his stratagems and strength were nearly exhausted, a saucy intruder, who had not shared in the honours or labours of the chase, were permitted to come in . . . and bear away in triumph the object of pursuit? Id. at 180 (Livingston, J., dissenting). 26. See Guth v. Loft, Inc., 5 A.2d 503, 511 (Del. 1939) ("[I]f there is presented to a corporate officer or director a business opportunity which the corporation is financially able to undertake . . . and, by embracing the opportunity, the self-interest of the officer or director will be brought into conflict with that of his corporation, the law will not permit him to seize the opportunity for himself."). 27. See generally ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES (1991). 28. See, e.g., Abbott Lab. v. Gardner, 387 U.S. 136, 148-49 (1967) ("[The] basic rationale [of the ripeness doctrine] is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies . . . until [a] decision has been formalized and its effects felt in a concrete way by the challenging parties."). The concept of ripeness is also helpful in analyzing appropriate behavior at different stages of a relationship. For example, a relationship may not be "ripe" for certain activities that connote serious intentions, such as meeting parents or spending holidays together. 29. This issue also raises important questions concerning the application of the First Amendment. Complex constitutional questions are beyond the scope of this Restatement. The intersection of constitutional history and law, however, and the law of love is ripe for academic exploration. The overlaps extend far beyond the First Amendment. The Preamble to the Constitution parallels the "we-ness"-i.e., the sense of unity and joinder-of a relationship in its first words: "We the People, in order to form a more perfect union . . . ." U.S. CONST. pmbl. These words could not more perfectly set forth the goals of a relationship. Moreover, the First (freedom of speech, right to petition for redress of grievances), Fourteenth (equal protection), and Nineteenth (suffrage) Amendments have obvious application to relationships. Theories of constitutional interpretation provide guidance in the law of love. People, like a society, must decide as they mature the standards to which they will adhere over time. Some argue that the standards set down in the earliest years must bind the future, or else these early principles stand for nothing. Others reject this originalist approach to relationships, and argue instead that their early principles should be modified to accommodate the necessarily changing circumstances that come with age. For example, a teenager decides that living together before marriage is immoral; later, as he or she matures, the decision takes on a different aspect. The question for the now-adult becomes: Is cohabitation before marriage immoral, and therefore forbidden, or was the guiding principle (on a more appropriate level of generality) to do the moral thing, which, under changed circumstances, could include "living in sin?" See Michael H. v. Gerald D., 491 U.S. 110, 127-28 n.6 (1989) ("Though the dissent has no basis for the level of generality it would select, we do: We refer to the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified."); id. at 136, 139 (Brennan, J., dissenting) (urging consideration of more "generalized interests" and suggesting that "[i]f we had looked to tradition with such specificity in past cases, many a decision would have reached a different result"); see also Bowers v. Hardwick, 478 U.S. 186, 190, 199 (1986). 30. See, e.g., William A. Fletcher, The Structure of Standing, 98 YALE L.J. 221, 223 (1988) (arguing that standing "should simply be a question on the merits of plaintiff's claim"). 31. See PAUL M. BATOR ET AL., HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 205-12 (3d ed. 1988) (discussing reasons why and ways in which courts avoid decisions on merits, and arguments in favor of resolution, especially where recurrence is likely). 32. See, e.g., Williams v. Florida, 399 U.S. 78, 82 (1970) (holding that the adversary system "is not yet a poker game in which players enjoy an absolute right always to conceal their cards until played"); United States v. Procter & Gamble Co., 356 U.S. 677, 682 (1958) ("Modern instruments of discovery serve . . . [to] make a trial less a game of blind man's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent."); see also AMERICAN BAR ASSOCIATION, STANDARDS FOR CRIMINAL JUSTICE ¤ 11-2.1 (2d ed. Supp. 1986). 33. See, e.g., Williams, 399 U.S. at 111-12 (Black, J., concurring in part and dissenting in part): It is no answer . . . to suggest that the Fifth Amendment as so interpreted would give the defendant an unfair element of surprise, turning a trial into a "poker game" or "sporting contest," for that tactical advantage . . . is inherent in the type of trial required by our Bill of Rights. . . . Throughout the process the defendant has a fundamental right to remain silent, in effect challenging the state at every point to: "Prove it!" 34. See discussion infra ¤ 4.4 (reporting of cases). 35. See RESTATEMENT (THIRD) OF PROPERTY ¤¤ 2.11-2.15 (Tentative Draft No. 1, 1989); RESTATEMENT (THIRD) OF PROPERTY ¤ 2.16 (Tentative Draft No. 3, 1993). Doctrines of easements over light and air prove useful in settling conflicts such as who sits next to the window in an airplane or who has to take the side of the bed near the window, where the morning sun will hit full in the face. For a discussion of easements over light and air, see F.H. LAWSON & BERNARD RUDDEN, THE LAW OF PROPERTY 133-34 (2d ed. 1982). 36. Watson v. Rheinderknecht, 84 N.W. 798, 798 (Minn. 1901). The common law duty to the "eggshell plaintiff" is well established. RESTATEMENT (SECOND) OF TORTS ¤ 461 (1965). It is irrelevant whether the vulnerability of the party is psychological or physical. Stoleson v. United States, 708 F.2d 1217, 1221 (7th Cir. 1983). Psychological eggshell thinness can take any number of shapes: extreme sensitivity to criticism, moodiness, inattentiveness, and sloppiness, to name some of the more common inherent defects. Parties are best served if they accept these defects after having decided to enter into the relationship. Cf. discussion infra ¤ 4.3 cmt. b (coming to the nuisance). 37. Cf. Public Serv. Co. v. Elliott, 123 F.2d 2, 6 (1st Cir. 1941) (holding that party who possesses more knowledge than "uninstructed layman" is judged in light of superior knowledge). 38. Cf. Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685, 1685 (1976) (observing that legal thought is plagued by contradictory rhetorical modes because as a society, "we are divided, among ourselves and also within ourselves, between irreconcilable visions"). 39. The Restatement does not address the mechanics of sexual activity, a topic covered by state criminal law and exhaustively analyzed in sources ranging from popular periodicals to quasi-scientific texts. 40. As Chief Justice Marshall declared in one of the Supreme Court's most famous cases, "we must never forget, that it is a constitution we are expounding." McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819). 41. See Harris v. Alabama, 63 U.S.L.W. 4147, 4151 (U.S. 1995) (Stevens, J., dissenting) ("[D]eath is a fundamentally different kind of penalty from any other that society may impose."). 42. See, e.g., Estate of Kretz, 189 A.2d 239, 241 (Pa. 1963) (signature required to validate will, and only that writing which precedes signature is validated). 43. Despite the law's clear recognition of such categorical distinctions, the question "is tax different?" continues to torment the great minds of the federal bench. See United States v. Forma, 42 F.3d 759, 760 (2d Cir. 1994). 44. A related argument among adults is that it is "artificial" and "immature" for people who have long been sexually active not to have sex with each other. 45. See Peter H. Schuck, Legal Complexity: Some Causes, Consequences, and Cures, 42 DUKE L.J. 1, 31 (1992) (describing as "one-way ratchet" phenomenon by which "courts, having adopted indeterminate rules, find it hard to go back to more precise ones"); see also United States v. McGee, 981 F.2d 271, 275 (7th Cir. 1992) (characterizing as "one-way ratchet" situation in which judge could modify defendant's conditions of supervised release from prison, but, once judge chose to revoke release and return defendant to jail, defendant could not be released again). 46. As courts frequently observe, "a bell once rung cannot be unrung." See, e.g., United States v. Singh, 922 F.2d 1169, 1172 (5th Cir.), cert. denied, 500 U.S. 938 (1991); Byrnes v. United States, 327 F.2d 825, 832 (9th Cir.), cert. denied, 377 U.S. 970 (1964). See also FED. R. CRIM. P. 48(a) which provides that once a prosecution is initiated, it cannot be withdrawn without permission of the court. 47. See Regina v. Dudley & Stephens, 14 Q.B.D. 273 (1884) (rejecting defendants' claim that their intentional killing of boy was "necessary" where boy and defendants had spent eighteen days in life-boat before defendants killed boy and ate his flesh and drank his blood). 48. See McCarthy v. Delaware, 372 A.2d 180, 182 (1977) (degree of responsibility for criminal actions depends on defendant's mental condition). 49. See People v. Borchers, 325 P.2d 97 (Cal 1958) (evidence justified trial judge's reduction of verdict from second-degree murder to voluntary manslaughter as committed in "heat of passion" where defendant's lover admitted infidelity, made statements that she wished she were dead, attempted to jump from automobile, repeated wish that defendant would shoot her, and taunted "are you chicken?"). 50. Of course, in the best case, a party knows not only his or her own goal, but is also considerate of the other party's goal. However, because relationships often fall short of the best case, the greatest guard against misunderstanding and disappointment is to know, and if necessary communicate, one's own goal. 51. Cf. Jordan Marsh Co. v. Commissioner, 269 F.2d 453 (2d Cir. 1959) (holding that for tax purposes, "sale" with accompanying "lease-back" differs from transfer of same property). 52. See, e.g., Knetsch v. United States, 364 U.S. 361 (1960) (transaction within literal language of tax code nevertheless deemed "sham," and benefits of deal were denied.) 53. At least 46 states and the District of Columbia have now enacted legislation authorizing the formation of the "limited liability corporation." See Seth M. Zachary and Joseph P. Opich, The New York Limited Liability Company Statute, TAX MANAGEMENT MEMORANDUM, Jan. 23, 1995, at 19 (noting the "seemingly optimal characteristics" of the entity). 54. Although attempts to use sexual intercourse as an informal method of compensating for relational shortfalls rarely succeed, compensatory awards are well-entrenched in other areas, such as torts and contracts. See Maul v. Kirkman, 637 A.2d 928, 939 (App. Div. N.J. 1994) ("essential purpose" of compensatory damages in tort and contract "to make plaintiff whole to the extent possible"). 55. See supra ¤ 2.3 (describing the aggravating circumstances under which one-night stands often occur). 56. In accordance with the principle that "sex is different," parties to a one-night stand are expected to remember each other and acknowledge each other at any subsequent meeting. Indeed, the failure to recall the name of a former sexual partner may be the source of great embarrassment. Parties are counselled to review yearbooks before returning to high school or college reunions. 57. The different calculus undertaken by men and women when contemplating a one-night stand is ripe for detailed discussion by law and economics scholars. Arguably, women face higher costs (pregnancy, infection, greater social disapproval) and lower benefits (less likelihood of achieving ultimate satisfaction with unfamiliar partner). 58. Parties seeking one-night stands frequently use indiscriminate cold-calling practices to find a sexual partner. These practices are common in boiler-rooms such as bars which serve underage customers and such well-established vacation spots as Fort Lauderdale and the Jersey shore. For a discussion of the problems posed by boiler-rooms, see Berko v. SEC, 316 F.2d 137, 139 n.3 (2d Cir. 1963). Fraternity houses are notorious sites of boiler-rooms. In the 1980's, college campuses across the country adopted the "no means no" doctrine in response to the same set of conditions that prompted regulation of cold-calling in the securities industry. For an example of securities regulation in this area, see SEC Rule 15c2-6, addressed to "the widespread incidence of high-pressure sales tactics in the peddling of low-priced speculative stocks to unsophisticated investors." DAVID L. RATNER, SECURITIES REGULATION 181, 4th ed. (1992). 59. For an analysis of burden shifting and the substantive implications of this procedural device, see Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1980) (discussing burden allocation in Title VII litigation). Compare McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (same). 60. Caution dictates the so-called "fertile octogenarian" presumption, i.e., that any person, of any age or physical condition, and at any time of the month, is capable of having children. See Jee v. Audley, 29 Eng. Rep. 1186 (1787). 61. See generally Floyd Norris, Orange County's Bankruptcy: The Overview; Orange County Crisis Jolts Bond Market, N.Y. TIMES, Dec. 8, 1994, at D1; Leslie Wayne, Local Governments Lose Millions in Complex and Risky Securities, N.Y. TIMES, Sept. 25, 1994, at A1. 62. Commonly perceived hallmarks of a risk-free party include an Ivy League degree, a professional job, and a "good" family. 63. The notoriously renegade West Coast courts--influenced by New Age philosophy and encounter-group theory--have advocated a new rule whereby parties communicate their views on this loaded subject before an encounter, in order to avoid defeated expectations. This rule, while seemingly useful, remains untested outside the region. 64. See Section 132 of the Internal Revenue Code of 1986, as amended (hereinafter "Code") ("certain fringe benefits"). 65. See Code ¤ 213 ("medical, dental, etc., expenses"). 66. See Code ¤ 119 ("meals and lodging"). 67. See Code ¤ 132(f) ("qualified transportation fringe"). 68. See Code ¤ 163(a) (interest on indebtedness). 69. See Code ¤ 132(b) (services that impose "no substantial additional cost"). 70. One of the leaders of the modern Court has observed: Flexibility rather than rigidity has distinguished [equity]. The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims. Hecht Co. v. Bowles, 321 U.S. 329-30 (1944) (Douglas, J.). 71. Equity is "[j]ustice administered according to fairness as contrasted with the strictly formulated rules of common law . . . . It is based on . . . what [is] fair in a particular situation." BLACK'S LAW DICTIONARY 540 (6th ed. 1990). 72. "A maxime is a proposition to be of all men confessed as granted without proof, argument, or discourse." SIR EDWARD COKE, THE FIRST PART OF THE INSTITUTES OF THE LAWS OF ENGLAND, OR A COMMENTARY ON LITTLETON, ¤ 67a. 73. Cf. Planned Parenthood v. Casey, 112 S. Ct. 2791, 2808 (1992) ("The obligation to follow precedent begins with practical necessity . . . . With Cardozo, we recognize that no judicial system could do society's work if it eyed each issue afresh in every case that raised it."). 74. One unresolved question in this body of law is whether school is the "real world" for purposes of identifying a viable relationship. 75. Even principles that seem embedded in the foundations of our society conflict on the effects of long distance on a relationship. Compare "Absence makes the heart grow fonder" with "Out of sight, out of mind" and "Familiarity breeds contempt." 76. Parties may also dispute whether the relationship rises to the level of requiring a formal dissolution to end it. One party may claim that interactions were just "for fun" or that the parties were "just dating," and that therefore, the harm is not great enough to warrant the full panoply of procedural protections. See Kenneth Mann, Punitive Civil Sanctions: The Middleground Between Criminal and Civil Law, 101 YALE L.J. 1795, 1812 (1992) ("Thus, the different procedural rules in the paradigmatic forms of criminal and civil law reflect distinct attitudes toward the severity of sanctions and due process.") (citation omitted). The other party may try to invoke contract principles to demonstrate mutual assent (or "meeting of the minds") in the absence of explicit agreement. RESTATEMENT (SECOND) OF CONTRACTS ¤ 19 cmt. 2 (1979) ("Conduct may often convey as clearly as words a promise or an assent to a proposed promise."). 77. E.g., "Things are moving too fast"; "You're terrific, but I'm not ready to make a commitment"; or "I wish we could have met ten years from now." 78. E.g., "It's just too hard to carry on the relationship when we aren't together." See supra ¤ 4.1. 79. E.g., "We never agreed that we wouldn't see other people"; "We never talked about the long term"; "I didn't know that you were moving to this city just to be with me." This defense is disfavored, because it frustrates the reasonable expectations of the opposing party. In the law of love, the statute of frauds' requirement that agreements be explicit is inapplicable, because a meeting of the minds need not be formally communicated. For a critique of lawyers' use of the defense, see William H. Simon, Ethical Discretion in Lawyering, 101 HARV. L. REV. 1083, 1123-25 (1988) (arguing that lawyer should not plead statute of frauds when doing so would frustrate opposing party's substantively meritorious claim). 80. Many jurisdictions hold that a claim that the moving party is too busy to conduct a relationship is per se unreasonable. Claims of other, more pressing priorities beg the question of what that party's priorities are. 81. See In re Amendment to Rule 39, 500 U.S. 13, 15 (1991) (Marshall, J., dissenting) (noting tradition that "All men and women are entitled to their day in Court."). 82. Specific performance, of course, is not an available remedy in this situation. In this respect, relationships are analogous to contracts for personal services. See Lumley v. Wagner, 42 Eng. Rep. 687 (Ch. 1852) (holding that plaintiff could not seek remedy of specific performance to require opera singer to perform pursuant to contract). 83. See generally Spur Indus. v. Del E. Webb Dev. Co., 494 P.2d 700 (Ariz. 1972) (discussing problems that arise when parties come to the nuisance). 84. The right to break off a relationship without the need to provide justification is recognized in Pierce v. Ortho Pharmaceutical Corp., 417 A.2d 505 (N.J. 1980). 85. The great harm committed when a proscribed activity is repeated in a "pattern or practice" is widely acknowledged in the law, most conspicuously in the Racketeer Influenced and Corrupt Organizations Act (RICO) provisions against patterns of racketeering activity. 18 U.S.C. ¤¤ 1961-1968 (1988). 86. The Williams Act, enacted in 1968, did away with Saturday Night Specials as part of an attempt to protect shareholders of corporations targeted in takeover bids. The Act created a minimum time period in which shareholders could evaluate offers before deciding whether to accept. See Robert A. Prentice, The Role of States in Tender Offers: An Analysis of CTS, 1988 COLUM. BUS. L. REV. 1, 43 n.241 ("Before enactment of the Williams Act's minimum hold-open period, a bidder could `blitzkrieg' a target's shareholders by giving them only a short period of time to decide whether to tender."). 87. For evidence of strained relations created by instability accompanying leveraged buyouts, see Metropolitan Life Ins. Co. v. RJR Nabisco, 716 F. Supp. 1526 (S.D.N.Y. 1989), vacated and remanded, 906 F.2d 884 (2d Cir. 1990). 88. Bruce Ackerman theorizes that revolutionary constitutional change occurs during times of "higher lawmaking" as distinguished from day-to-day politics. BRUCE A. ACKERMAN, WE THE PEOPLE 6 (1991). 89. Unless it is a prize college sweatshirt, or other unique good, in which case adverse possession does not apply. 90. For a discussion of the role of storytelling in law, see Martha Minow, Words and the Door to the Land of Change: Law, Language, and Family Violence, 43 VAND. L. REV. 1665 (1990); Mark G. Yudof, "Tea at the Palaz of Hoon": The Human Voice in Legal Rules, 66 TEX. L. REV. 589 (1988). 91. The efficient market hypothesis buttresses the rationale for reporting of cases. Promulgation of information benefits not just the community, by providing useful precedent, but the parties themselves, by allowing the market to adjust to the information that parties are available for dating. Without accurate information, the workings of the marketplace are distorted, resulting in "fraud on the market." For example, one party may pretend not to be in a relationship, thereby attracting the attention of interested parties, when the party is actually unavailable. The dangers of fraud on the market are set forth in Basic Inc. v. Levinson, 485 U.S. 224 (1988). 92. Legal ethics rules recognize the importance of maintenance of past confidences. See MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.9(b) (1983). 93. Herbert Wechsler, The Challenge of a Model Penal Code, 65 HARV. L. REV. 1097, 1098 (1952). January, 1997 | |
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