Law and Love – an Eclectic Research Nosegay for Valentine’s Day

The law can tell us a few things about love. Legislation, jurisprudence and doctrine.

Remember Wystan Auden’s poem, Law Like Love which you can hear read in the great man’s voice:

Law, says the judge as he looks down his nose,
Speaking clearly and most severely,
Law is as I’ve told you before,
Law is as you know I suppose,
Law is but let me explain it once more,
Law is The Law.

And Auden goes on to contrast that with love – but you really should read the work yourselves.

Let’s start with legislation. All young lawyers should be familiar (intimately perhaps) with The Restatement of Love by Jamie G. Heller and Gretchen Craft Rubin, Reporters, (1994), 104 Yale L.J. 707 which is a thoughtful examination of the laws governing courtship and love:

[From the definitions section]:

¤ 1.4. Love
Parties in “love” are those parties to a relationship who consider themselves engaged in the highest level of emotional intimacy attainable and who generally presume that such state will continue indefinitely.

Comment:
The English language contains no precise alternate term for “love.” This fact is often decried as a constraint on the expression of emotional subtlety. For the purposes of this Restatement, however, one term is sufficient.

I offer one tiny extract from this innovative work:

Because reasonable minds disagree so strongly on the issue of spending the night, the Reporters cannot responsibly advocate one position. Rather, the Restatement cautions that a party initially taken aback by another’s approach should recognize that both methods enjoy ample support in the caselaw.63 Note that to avoid “spending the night,” a party must depart by 5:45 a.m.

Next jurisprudence. It will come as no surprise to legal researchers of as innovative a bent as Slaw readers that the courts have had a field day with Valentine’s Day:

For a discussion of whether mushrooms constitute aphrodisiacs for the purpose of Valentine’s Day, see the the Reply Brief for the petitioner in United States of America and United States Department of Agriculture, v. United Foods, Inc.

We know that florists shops do a roaring trade on Valentine’s Day. See Scott v RJ and M McCurdy (T/as Blackwood Florist) [2003] SAIRC 53 (31 July 2003)

We know that stalking can reach fever pitch on Valentine’s Day and at least one beau gave a package of cigarettes as a Valentine’s Day gift – how romantic. See R. v. Ryback (1996), 105 C.C.C. (3d) 240; (1996), 47 C.R. (4th) 108

The controversial Honourable David Emerson featured in one BC law suit Wright v. British Columbia Trade Development Corp., (1994), 3 C.C.E.L. (2d) 254 (BC S.C.) where an employee alleged that he had been wrongfully dismissed in a letter from Emerson for a tasteless scam in which the plaintiff had forged the signatures of senior executives on gift cards accompanying skimpy lingerie to female employees, given on Valentine’s Day.

And finally doctrine: check out

Erotic melancholia: law, literature, and love. Peter Goodrich.
Law and Literature, Spring 2002 v14 i1 p103-129

Amatory jurisprudence and the querelle des lois. (Symposium on Philosophical Hermeneutics and Critical Legal Theory) Peter Goodrich.
Chicago-Kent Law Review, Winter 2000 v76 i2 p751-778

‘Besieged’ by beneficience: love, justice, and the autonomous self. (Dimensions of Law and Literature) Annalise Acorn.
Saskatchewan Law Review, Wntr 2000 v63 i1 p69-86

The love connection: human emotions are too vital to be left out of court decisions. Zick Rubin.
ABA Journal, Feb 1997 v83 p108(1) Courts have often avoided explorations of love and emotion in their decision-making, but for the law to have relevance to human experience, it must acknowledge love and the deep connections that it fosters. Love as a legal issue arises in family law, of course, but romantic issues have been raised in tort and employment law cases as well. The New Jersey Supreme Court took a significant step when it found that negligent infliction of emotional distress claims based on injury to a loved one should not be limited to legal relatives.

Law in the courts of love: Andreas Capellanus and the judgments of love. Peter Goodrich.
Stanford Law Review, Feb 1996 v48 n3 p633-675

Desmond Manderson and Paul Yachnin, Love on Trial: Nature, Law, and Same-Sex Marriage in the Court of Shakespeare (2004) 49 McGill Law J 475.

Echoes of the love command in the halls of justice. Mark B. Greenlee.
The Journal of Law and Religion, Wntr 1996 v12 n1 p255-270

‘Sue me, sue me, what can you do me? I love you’ a disquisition on law, sex, and talk. Dan Subotnik.
Florida Law Review, July 1995 v47 n3 p311-409

Love, rage and legal theory. Robin West.
Yale Journal of Law and Feminism, Spring 1989 v1 n1 p101-110

Justice and love. Raymond B. Marcin.
Catholic University Law Review, Wntr 1984 v33 n2 p363-391

The supreme courtship: in honor of Valentine’s Day attorney couples were asked to share their love stories of meeting and dating in the legal world. Nevada Lawyer Feb 2005 v13 i2 p10(5)

Valentine’s Day brings smiles – even for the judge.For the past 23 Valentine’s Days, Judge Bernard Goodheart has managed to put a smile on many of the faces of those who appear before him.

Since then, Goodheart’s name has attracted more than 500 couples, including Norman Madsen and Charlene Brockington of Northeast Philadelphia, who plan to be married Monday. Rob Maaddi.
Chicago Daily Law Bulletin Feb 14, 2000 v146 i31 p1 col 4 (35 col in)

And back to Auden for Law Like Love, Jeffrie G. Murphy
Syracuse Law Review, Vol. 55, No. 1, pp. 15-32, 2004 This is a transcript of the Kharas Distinguished Lecture that was delivered in March of 2004 at Syracuse University College of Law. John Rawls has famously said that justice is the first virtue of social and legal institutions. This lecture seeks to open a discussion of the question: What would law – particularly criminal law – be like if we regarded love (agape) as the first virtue of social and legal institutions? The lecture discusses punishment – including capital punishment – in a framework of love, and critically considers the claim frequently made that love-based forgiveness is inconsistent with capital punishment and perhaps with all punishment.

Happy Valentine’s Day, Slawyers