Council Rule 4.03 states: “To maintain the Institute’s reputation for thoughtful, disinterested analysis of legal issues, members are expected to leave client interests at the door. In communications made within the framework of Institute proceedings, members should speak, write, and vote on the basis of their personal and professional convictions and experience without regard to client interests or self-interest.”

This does not mean that we leave our views, shaped by our personal and professional experience, and our expertise, often gleaned from representation of clients, at the door. The diversity of experience and opinion in our membership, as well as the character and motivation of individual members, are an important part of what makes our work influential. With such diversity, disagreement is inevitable, but the vision of the founders of the ALI was that members would view their participation as a public service, and not as in the service of the self or of clients. And this should inform members on how we are to engage in the work of the ALI.

The formation committee that conceived of the ALI had very clear ideas, which remarkably include precise descriptions of membership and what the ALI members would create in the ensuing 95 years, as well as a practical guide to the process of creation. At the first meeting of the ALI in 1923, Elihu Root recognized that the Institute’s work “must be so done as to carry authority, as to carry conviction of impartial judgment upon the most thorough scientific investigation and tested accuracy of statement. … Participation in the enterprise must be deemed highly honorable. Selection for participation must be deemed to confer distinction; it must be recognized a great and imperative public service.”

At the second Annual Meeting of the Institute in February 1924, ALI President George Wickersham explained to the members what he hoped the Institute would produce:

Out of the welter of decision of many courts all over the land, it is the purpose of the Institute, through the labors of the foremost scholars in the law, to produce a statement of the existing state of the common law, so clear and accurate, that it will pass the criticism of the professional critics employed by the Institute, of the Council of the Institute, and of the Membership. It is our hope and belief that such a statement when finally put forth with the authority of this body, may be accepted by the bench as at least prima facie authoritative, and that it will relieve the bench and bar from repeating the arduous tasks that will have been performed by the authors of the statement, in examining the great mass of decisions of the past and gleaning from them an accurate statement of the law.

One of the first acts of the Council was to appoint the Reporters on projects on Torts, Agency, Contracts, and Conflict of Laws. By the time of the second Annual Meeting in 1924, several “conferences,” or project meetings, had been held. George Wickersham told the members:

I have had the privilege of attending one or two of these conferences, from which I came away with a renewed confidence in the ultimate success of the undertaking. I wish that every member of the Institute could have been present and heard the discussion had at these meetings, and have witnessed the spirit of open-mindedness with which all criticisms were received by the authors of the drafts under consideration, and the frank scholarly character of the discussion. What impressed me most favorably was the utter absence of any dogmatic attitude on the part of scholars of world-wide repute in these discussions. No attitude of resentment, or even impatience at even the most destructive criticism was exhibited at any time, but only the keenest desire for accuracy and for clarity; a welcoming of all helpful criticism and a patient weighing and analysis of every suggestion that any part of the draft under consideration was susceptible of improvement or required modification. It is in this spirit alone that the work properly can be performed. It is the presence of this attitude and this spirit in the midst of the great scholars who are addressing themselves to the task that affords an earnest success in their efforts. No one who has not taken part in these discussions or devoted himself in some measure to an effort to ascertain and state in clear form the existing law on any given subject, can appreciate the difficulty of extracting from the great mass of precedents a statement of the actual law, which will be accepted generally as a final authoritative declaration. The work from its very nature cannot be hurried. It is better that we produce only one book which will successfully run the gamut of professional criticism and find acceptance as the correct formulation of existing law, than that we should produce twenty treatises, concerning the accuracy and authority of which the best informed and most competent lawyers should differ. … Unlike the great commentaries of the Roman law.…the work of this Institute will not have behind it the force of Imperial mandate, nor of legislative sanction. It must appeal to the professional sense of the American bar as accurate and adequate, and to the judge of the bar we must commit the result of our labors.

The Director, William Draper Lewis, spoke next:

As I conceive it, the person for whom primarily we are writing the Restatement is the judge engaged in the actual decision of a case—not the judge desiring to make profitable use of his leisure moments. It is by such judicial use that the object of the Restatement can be most effectively accomplished. The judge, in deciding a case, does not need long discussions of the conflicts in existing decisions; … What the judge needs is a direct, and as far as possible, simple statement of the law as the Institute declares it. Back of these statements will be the reputation of the Institute; and supporting them will be the reasoning in the accompanying Treatise. It is for us to make each as strong as possible. … [I]t also presupposes that the Institute, because of its personnel, organization and care used in the creation of the restatement, has a right to speak with authority.

Over the decades the ALI has had many controversial projects. There have been campaigns and criticisms. The heat in the discussion often has been in proportion to the expected degree of influence. ALI members have always managed to coalesce. This may be because clients are left at the door and careful reading, courteous criticism, and cooperation are not.

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Stephanie A. Middleton

The American Law Institute

Stephanie Middleton is the Deputy Director of ALI.  She previously served as Staff Director and General Counsel for the U.S. Senate Committee on the Judiciary. Before that she was Chief Counsel for Litigation at CIGNA Corporation.  She served as Deputy General Counsel for Pennsylvania Governor Tom Ridge.  Before that she was an associate at Morgan Lewis.    

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