University of Chicago Law Review

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Professor Douglas NeJaime’s Essay Parents in Fact1 com- mends the Restatement of Children and the Law’s2 embrace of the de facto parent doctrine.3 He is somewhat critical, however, of the Restatement’s reference to individuals seeking recognition as de facto parents as “third parties” and its reluctance to recognize de facto parents as legal parents.4 He is also skeptical of the Restatement’s requirement that an individual seeking recognition as a de facto parent first show that a legal parent consented to and fostered the individual’s creation of a parent-child relationship with the child.5 NeJaime’s observations provide an opportunity to clarify the scope and constraints of a restatement—which requires “clear formulations of common law” rules and must “reflect the law as it presently stands”6 but also provides space, albeit limited, for expression of “the relative desirability of competing rules.”7 NeJaime’s reflections also allow us to illustrate how silence—not taking a position—on issues that courts have yet to decide furthers the Restatement’s legitimacy while minimizing the risk that it will be “a roadblock to change”8 as the law evolves.

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