In a time of crisis, thoughtful lawyers look for ways to apply pre-existing authority to evolving situations. Since so many lawyers and clients are now communicating with each other from their homes, the COVID-19 pandemic presents such a time with respect to the protection of attorney-client privilege.
In a recent column published in the New York Law Journal, Hughes Hubbard & Reed partner John Fellas describes the forthcoming Restatement of the Law, The U.S. Law of International Commercial and Investor–State Arbitration, as “a landmark in the field of U.S. international arbitration law that displays all the characteristics of the exemplary Restatement.”
The ALI has been keeping tabs on judicial citations to Restatements of the Law since the early days. At the 1937 Annual Meeting, for instance, Herbert Goodrich reported that as of that time, “there were 459 citations by the Federal Courts, [and] 3023 by the state courts, making a total of 3482 court citations.”
The Restatements of the Law have played a vital role in the rationalization of American jurisprudence for nearly a century. As Justice Anthony M. Kennedy recently remarked at the ALI annual Meeting, 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 ALI Style Manual, a somewhat obscure publication that nonetheless plays an important role in our work, provides relatively clear drafting guidance for Restatements and model codes. Drafting guidelines for Principles projects, however, are not as well specified. This gap has led to some confusion and disagreement among project participants and inconsistencies in our drafts. My hope is that this letter’s focus on the issue will lead us to more consistency in our Principles projects.
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.
In the past few years, we frequently have seen the charge that the ALI’s mission is to state what the law “is,” rather than what the Institute thinks the law “ought to be,” and that we recently have strayed from this mission and should right the ship. This charge most often is made when the ALI chooses to restate a minority rule. As one commentator wrote in criticizing the Restatement of the Law, Liability Insurance (which, despite the criticism, followed majority rules in nearly all of its Sections): The adoption of a minority rule in a Restatement “is fundamentally inconsistent with the purpose of a Restatement of Law project.” Such comments rest on the notion that the ALI’s mission is simple, uncontested, and has always been so. That, however, is not the case.
The American Law Institute was selected to be profiled by Visionaries in its 23rd season. Visionaries is a nonprofit educational organization dedicated to producing and distributing media that inspires individuals and communities to take action for positive social change.
This article provides a selective perspective on The American Law Institute, a private law reform organization established in 1923, and particular processes by which it performs its work in developing restatements of the law.
Two U.S. Courts of Appeals recently cited the Restatement of the Law Third, Torts. The First Circuit cited the Restatement of the Law Third, Torts: Products Liability § 4 and the Seventh Circuit cited Restatement of the Law Third, Torts: Liability for Physical and Emotional Harm §§ 27 and 34. Summaries of those opinions are provided below.