John DeWitt Gregory

The ALI Property Division Principles: A Model of Radical Paternalism

This essay addresses Chapter 4 of the American Law Institutes Principles of the Law of Family Dissolution, which is titled Division of Property Upon Dissolution. The piece initially sets out the arguably flawed process by which the ALI adopted the Principles, the product of a project launched more than a decade before. A selective critique of the Principles follows. After summarizing the ALIs quite conventional definition and characterization of property subject to division, the essay criticizes the radical application of these characterization rules, extending them to the property of unmarried cohabitants, largely rejecting prevailing law. The essay then examines other provisions of the Principles that would radically change or entirely reject rules that state courts have developed through careful reflection over the course of several decades. The essay concludes that the ALIs recommendations in this area are unlikely to be widely accepted by lawyers, enacted by legislatures, or followed by state courts.