The Restatement of Gay(?)
43 Pages Posted: 13 Aug 2013 Last revised: 8 Jan 2015
Date Written: August 12, 2013
This Article is forthcoming in a symposium issue of the Brooklyn Law Review examining the American Law Institute's Restatements. This Article considers whether there should be a Restatement devoted to legal issues affecting lesbian, gay, bisexual, and transgender (LGBT) people. Ultimately, the Article argues for inclusion of and engagement with LGBT issues in the Restatements, but against the creation of a stand-alone Restatement devoted to LGBT issues. Part I of this Article develops why we think it is critical for the ALI to consider and address LGBT issues. Part II explains why we advocate an inclusive rather than an exclusive approach for such consideration. We use an ALI publication – the Model Penal Code (MPC) – to help illustrate some of the benefits of an inclusive approach. Part III provides concrete examples of how this approach could be implemented. We start by offering guidance as to what types of provisions are most likely in need of reconsideration and possible revision. Such provisions include those that turn on the existence of a legally recognized relationship. Other provisions that may be in need of reconsideration are ones that relate to discriminatory conduct. To provide more clarity about what we advocate, we offer one example of an ALI publication that already does a good job incorporating LGBT issues – the Principles of the Law of Family Dissolution, as well as one example of an ALI publication that needs further revision – the Third Restatement of Torts.
Keywords: Restatement, American Law Institute, lesbian, gay, transgender, LGBT, discrimination, legal profession, clarify
Suggested Citation: Suggested Citation