The below is the introduction from an article originally featured in Volume 62, Issue 2, Winter 2019 edition of Howard Law Journal. The full article is available here (starting on page 191 of this pdf, which is page 511 of the complete journal).
The American Law Institute is the leading independent organization
in the United States producing scholarly work to clarify,
modernize, and improve the law. <fn>About ALI, AM. LAW INST., https://www.ali.org/about-ali/ (last visited Jan. 10, 2019).</fn>
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An unelected body like the American Law Institute has limited competence and no special authority to make major innovations in matters of public policy. Its authority derives rather from its competence in drafting precise and internally consistent articulations of the law.<fn>AM. LAW INST., CAPTURING THE VOICE OF THE AMERICAN LAW INSTITUTE: A HANDBOOK FOR ALI REPORTERS AND THOSE WHO REVIEW THEIR WORK (2015), [hereinafter, Handbook].</fn>
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It is not a government agency. Hence, the Institute has no government powers, despite the “authority” attributed to it. . . .Its work product is offered into the marketplace of legal ideas and receives whatever weight it may be given by the authoritative organs of government–judicial and legislative.<fn>Geoffrey C. Hazard, Jr., The American Law Institute is Alive and Well, 26 HOFSTRA L. REV. 662, 664 (1998).</fn>
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. <fn>See Bennett Boskey, The American Law Institute: A Glimpse at its Future, 12 GREEN BAG 2D 255, 256 n.1 (2009) (collecting literature on origins, history, and activities of the Institute). See also Herbert F. Goodrich, The Story of the American Law Institute, 1951 WASH. U. L.Q. 283, 285 (1951). </fn> The Institute creates restatements through a form of “group scholarship” using multi-layer drafting, review and comment processes, culminating in approval by voting; <fn>See Goodrich, supra note 4, at 287 (“A final restatement of a subject would thus be the product of highly competent group scholarship subjected to a searching criticism of equally learned and experienced members of the bench and bar.”). Participants in the group endeavor include the reporters, council, advisers, and participating membership.</fn> it leaves to the courts and legislatures to decide whether to follow the restatements or not; and many times they do. <fn>See, e.g., Kristen David Adams, The Folly of Uniformity? Lessons from the Restatement Movement, 33 HOFSTRA L. REV. 423, 436 (2004) (“Because of the high level of respect that the American Law Institute has earned, the Restatements’ taking a certain position is likely to influence the development of the law.”). The Virgin Islands, however, “by statute have adopted the Restatements in their entirety as the Islands’ de facto common law.” Id. at 424. But see, e.g., Banks v. Int’l Rental & Leasing Corp., 55 V.I. 967, 980 (2011). Accordingly, some statements made about the effect of the restatements in this article and elsewhere have been historically inapplicable to the Virgin Islands. Professor Adams’ article declined to address the history of the American Law Institute because it is amply covered elsewhere. See Adams, supra note 13, at 432 (“The history of the American Law Institute has been examined too well by too many others for me to undertake that same task here.”). Nor, for the same reason, will this article undertake that task.</fn>
The article focuses, among other things, on the significance and validity of voting as a means of Institute decision-making in reaching correct decisions as opposed to merely final decisions; and it recommends review and assessment of the Institute’s procedures relating to voting. Specific suggested modifications are in the form of by-law changes on the representations made by voters by the act of voting, retention and disclosure of certain voting records, availability of dissents and other matters. Finally, the article identifies selected challenges in drafting restatements, including in identifying majority rules and following Institute drafting guidelines.
Norman L. Greene, The American Law Institute: A Selective Perspective on the Restatement Process, 62 How. L.J. 511 (2019).
© 2019 Norman L. Greene. Mr. Greene is a member of the law firm Schoeman Updike Kaufman & Gerber, LLP, practicing in New York. He is also an elected member of The American Law Institute. This article was supported in part by the U.S. Chamber Institute of Legal Reform, and the views expressed are those of the author.