The American Law Institute was founded in 1923. Since then, the ALI has promulgated Restatements of the Law in several subjects and other influential works such as the Model Penal Code and the Uniform Commercial Code, a joint venture with the Uniform Law Commission. The ALI also has sponsored studies and, in recent decades, has issued Principles of the Law, which are primarily addressed to legislatures, administrative agencies, or private actors, as opposed to Restatements, which are primarily addressed to the courts. Retired Supreme Court Justice Anthony M. Kennedy recently remarked that the Restatements and the ALI “did for the American, Anglo-American judicial process and for the law in the 1920s what Blackstone had done 150 years earlier.” The Bar Library has a complete collection of Restatements and other ALI materials, including drafts that are not commonly available.
The ALI and How Restatements Are Made.
In 1914, the American Association of Law Schools appointed a committee to consider the feasibility of an institute in Washington where American and English students and scholars could gather to study jurisprudence and the law. The AALS effort was interrupted by World War I but was taken up again in 1920 and 1921. William Draper Lewis, then a professor at the University of Pennsylvania, approached Elihu Root, then the leader of the American bar, who agreed to lead the effort to found what ultimately became the ALI. The ALI’s first meeting in 1923 included luminaries from the legal profession, many of whom still are household names today – William Howard Taft, then Chief Justice of the United States, Oliver Wendell Holmes, Benjamin Cardozo, John W. Davis, Learned Hand, Roscoe Pound, John Wigmore and Harlan F. Stone. The primary affiliations of the attendees at the 1923 meeting – the bench, the practicing bar and academia – are still reflected in the ALI’s membership today. As of June 2019, the ALI has 2,812 Elected Members, 1,576 Life Members (elected members who have served 25 years or more) and 257 Ex Officio Members (e.g., law school deans and state supreme court chief justices who are not otherwise ALI Members). The ALI’s membership breaks down as follows:
39% Practicing Attorneys
11% Corporate, Government, Nonprofit
The ALI’s membership represents a broad spectrum of the legal profession. There are ALI members from every state. Several judges from each of the federal appellate circuits and at least one judge from 36 state supreme courts are elected members. Maryland lawyers and judges have played important roles within the ALI since its founding. William L. Marbury, Sr., and Charles McHenry Howard were among the original members of the ALI, Judge T. Scott Offutt of the Court of Appeals of Maryland was one of the Advisers for the First Restatement of Torts and several other judges of the Court of Appeals have been members. Many Baltimore Bar Library members also have been members of the ALI, including William L. Marbury, Jr., who was a member of the ALI Council for almost 40 years and whose personal ALI materials are in the Bar Library’s collection.
Most lawyers encounter the Restatements of Contracts and Torts in their first year of law school and accept the Restatements as a given without much thought as to how they came to be. Without getting into too much detail as to how the sausage is made, here is a brief overview of the process, which in many respects has not changed since 1923.
In order to understand the process, one has to understand the ALI’s structure. Insofar as approval of Restatements and other ALI products is concerned, the ALI is a bicameral organization consisting of the ALI Council, a group of approximately 60 judges, professors and lawyers, and the ALI Membership. Every ALI Restatement has to be approved by both the Council and the Membership before it is the official position of the ALI. The Council meets several times per year; the Membership meets each year in May for three days. Each Restatement has a Reporter, a distinguished academic, and most Restatements have one or more Associate Reporters. Reporters and Associate Reporters are appointed by the Council. The work of the ALI is administered by the Director, who usually has an academic appointment in addition to being Director, a Deputy Director, who is a full-time administrator, and a staff headquartered in Philadelphia. The ALI has had only six Directors in its history – William Draper Lewis, who taught at and served as Dean of the University of Pennsylvania Law School: Herbert Goodrich, who was a judge of the U.S. Court of Appeals for the Third Circuit and also had been Dean at Penn; Herbert Wechsler of Columbia Law School, who had been the primary draftsman of the Model Penal Code; Geoffrey Hazard of Yale Law School; Lance Liebman, formerly Dean of Columbia Law School; and the current Director, Richard (“Ricky”) Revesz, formerly Dean of New York University School of Law. Each Restatement Project has a formal group of Advisers, approximately 10-30 members with expertise in the subject area of the Restatement. Each project also has a Members Consultative Group or MCG to which any member can join.
The Reporter and Associate Reporters produce an initial draft or drafts for a Restatement; it is not uncommon for parts of a Restatement to be drafted seriatim. The initial draft or drafts are presented to the Advisers and MCG for comment; the Advisers and MCG meet either together or separately with the Reporter and Associate Reporters once or twice per year for a one-day meeting during the life of a project. The Advisers and MCG members also comment in writing throughout the drafting process;
The timeline for a Restatement, from the time a project is initiated until the Restatement finally is approved can take from five to ten years. Although the drafting process can seem glacial to an outsider or newcomer, it is integral to the standing of the Restatements. The ALI is a self-appointed body with no formal authority. The deliberative process through which Restatements go before they become final is what gives the Restatements their authority.
Restatement First, Restatement Second, Restatement Third . . .
During the era between the founding of the ALI and the end of World War II, the ALI produced nine Restatements. In 1947, a committee chaired by Judge Learned Hand recommended that the ALI revise the Restatements, and the Second Restatements were begun.
When the ALI launched the second series of Restatements in 1952, all Restatements from that era were designated Restatement (Second) even though one of the projects in the series, the Restatement (Second) of Foreign Relations Law of the United States, was the first Restatement of that subject. In 1987, the ALI launched the Third series of Restatements and in 2012 the ALI launched the Restatement (Fourth) of the Foreign Relations Law of the United States. In 2015, the ALI Council adopted a new protocol regarding numbering of Restatements. Going forward, the numbering of completed projects will be unchanged. Thus, the Restatement (Fourth) of the Foreign Relations Law of the United States will not be renumbered even though it is only the third Restatement in the area. But, in the future, the ALI will proceed sequentially. Thus, the Restatement of Employment Law, which was approved in 2015, does not have a numerical designation because there was no previous Restatement in the area and the current Restatement of Conflict of Laws project will carry a “Third” designation when it is completed because there are only two previous Conflicts Restatements. Up to this point, all Restatements within a given series have the same color binding. The Employment Restatement has a burgundy binding, a new color for the ALI.
A cursory examination of the various series of Restatements will show differences among them. The first series of Restatements largely consisted of black letter pronouncements with little commentary; Reporters’ Notes were in appendices and quite short. The second series of Restatements had more substantial commentary. The third series of Restatements has even more substantial commentary and robust Reporters’ Notes.
In terms of substance, the First Restatements largely were restatements of the majority rule then applied by courts across the United States. However, even the First Restatements had reformist elements. For example, Section 90 of the Restatement of Contracts, promissory estoppel, was something that Samuel Willison the Reporter for the project had advocated in his treatise but was not accepted generally by the Courts at that time.
The Second Restatements were more reformist in character. They reflected changes in legal scholarship and the courts in the post-World War II era. Perhaps the most notable example of the reformist character of the Second Restatements is Section 402A of the Restatement (Second) of Torts, which imposed strict liability for defective products. William Prosser, the Reporter for the Second Restatement, had advocated for strict liability for defective products. However, there was no case that applied strict liability generally. Justice Roger Traynor of the California Supreme Court was an Adviser to the Restatement (Second) of Torts project. Just as the project was about to be approved – without a general strict liability provision – Traynor authored an opinion, Greenman v. Yuba Power Products, Inc., 59 Cal. 2d 57, 377 P.2d 897 (1963), that adopted the concept. Prosser then produced a new draft and the ALI accepted it. Notwithstanding the scant support for Section 402A, it was readily adopted by courts across the country, including the Court of Appeals of Maryland.
In 2015, Justice Antonin Scalia criticized modern restatements in an opinion in which he partially dissented from the Supreme Court’s reliance on Section 39 the Restatement (Third) of Restitution and Unjust Enrichment. Justice Scalia said:
I write separately to note that modern Restatements—such as the Restatement (Third) of Restitution and Unjust Enrichment (2010), which both opinions address in their discussions of the disgorgement remedy—are of questionable value, and must be used with caution. The object of the original Restatements was “to present an orderly statement of the general common law.” Restatement of Conflict of Laws, Introduction, p. viii (1934). Over time, the Restatements’ authors have abandoned the mission of describing the law, and have chosen instead to set forth their aspirations for what the law ought to be. Keyes, The Restatement (Second): Its Misleading Quality and a Proposal for Its Amelioration, 13 Pepp. L.Rev. 23, 24–25 (1985). Section 39 of the Third Restatement of Restitution and Unjust Enrichment is illustrative; as Justice THOMAS notes, post, at 1068 (opinion concurring in part and dissenting in part), it constitutes a “ ‘novel extension’ ” of the law that finds little if any support in case law. Restatement sections such as that should be given no weight whatever as to the current state of the law, and no more weight regarding what the law ought to be than the recommendations of any respected lawyer or scholar. And it cannot safely be assumed, without further inquiry, that a Restatement provision describes rather than revises current law.
Kansas v. Nebraska, 135 S. Ct. 1042, 1064 (2015) (Scalia, J., concurring in part and dissenting in part).
The distinction between the First and Second Restatements is not as drastic as Justice Scalia suggested. More importantly, the Second Restatements largely have been accepted by the courts. Thus, with a few notable exceptions, the Restatements – First, Second and Third – are a good predictor of what a court will do if there is no controlling precedent and a good support for making an argument that controlling precedent should be changed if it conflicts with the Restatement rule. The Court of Appeals of Maryland began citing the Restatements even before they were in final form. See, e.g., State ex rel. Schiller v. Hecht Co., 165 Md. 415, 422 (1933) (Torts); Brown v. Fahey, 157 Md. 481, 485 (1929) (Contracts); Atlas Realty Co. v. Galy, 153 Md. 586, 594 (1927) (Agency). Further, federal courts will look to Restatements when trying to predict what a state supreme court (or, in the case of Maryland, the Court of Appeals) will do when there is no controlling precedent. Even Justice Scalia cited newer Restatements with approval in his opinions.
Not all Restatements are created equally. For example, among the Second series of Restatements, the Restatement (Second) of Conflicts of Laws has had significantly less acceptance than other Restatements. Maryland has clung to the First Restatement of Conflict of Laws. But, even the Court of Appeals’ refusal to adopt the Second Restatement’s interest analysis construct for resolving conflicts, is not as steadfast as the Court would have us believe. As Professor William L. Reynolds has written, the Court of Appeals has manipulated “public policy” exceptions to escape the formalism of the First Restatement.
The Restatements and You.
The Restatements are a good source of information about the law. Modern Restatements have copious Reporters’ Notes that can be good sources for further research. Depending upon your position in a case, the Restatement can be good support for a position where there is no controlling precedent or you wish to change controlling precedent. The Restatements also serve a valuable function of presenting the language and structure of a substantive area of the law in a comprehensive and organized fashion. Reported cases, because of the nature of litigation, provide focused but limited insights into an area of the law. Especially in appellate litigation, having a broad view of the subject can be very helpful in making and justifying arguments.
The ALI has several projects in the works. The ALI Membership approved the Restatements of Liability Insurance and Torts: Economic Harm at the May 2018 Annual Meeting and the Restatements of Charitable Nonprofit Organizations and International Commercial and Investor-State Arbitration at the May 2019 Annual Meeting. Hardbound, final texts of these Restatements are in progress and should be published soon. The proposed final drafts of these Restatements currently are available on LEXIS and Westlaw.
The final installments of the Restatement (Third) of Torts, which has been published in parts, are in the works. In January 2019, the ALI Council approved three new torts projects to complete the Restatement Third – Defamation and Privacy, Remedies, and Concluding Provisions. The ALI has been working on a Restatement of the Law of American Indians. That project is well on its way to completion and should be approved in 2020 or 2021. One current project about which I am especially excited is the Restatement (Third) of Conflict of Laws. The project is many years from completion. However, I have high hopes that the Reporters will be able to bridge the gap between the theories of the Second Restatement and current practice in the Courts to produce a Restatement that will have broad acceptance, including by our own Court of Appeals. Finally, the ALI has begun a Restatement (Fourth) of Property. The goal is to have the entire field restated in one work as opposed to the way that the Restatement (Third) of Torts has been produced. Given the scope of the project, I expect that we will not see it in final form for many years.
As the ALI approaches its 100th anniversary, it continues to fulfill its mission to clarify, modernize, and otherwise improve the law. The Bar Library began collecting ALI publications in the 1920s and has a comprehensive, up-to-date collection of ALI materials.
The above post originally appeared in the Baltimore Bar Library Newsletter.