Abstract
This paper offers a vantage point through which to assess the phenomenon of projects codifying private law that are undertaken by private persons or institutions, distinct from legislatures and state-sponsored codification and law-revision projects. The private institution on which this paper focuses is the American Law Institute (ALI). ALI works in statutory form—most notably the Uniform Commercial Code and the Model Penal Code—as well as through projects that generate “Principles” to guide legal development within their specific fields and “Restatements” that authoritatively cover the law in a field.
The history of the Restatements sketched in this essay fits within the prototype of Searching for Utopia with which the paper begins. Although the Restatements do not control their subsequent reception by courts, at times Restatements succeed in anticipating legal development. This paper also demonstrates that ambiguity accompanies the underlying terminology of authority and, for that matter, private law. Finally, and for many reasons, contemporary Restatements speak to an audience of disbelief in the existence of one common law that exists autonomously of invading influences, including statutes. How to assess authority, influence, and success for a Restatement are more interesting questions
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Notes
- 1.
Although the ALI is not an instrumentality of the United States or of any state, its federal tax-exempt status means its property and net income are not subject to taxation, and its public-regarding purposes make it eligible to receive tax-deductible contributions from donors.
- 2.
On the early history, see the numerous sources cited in, e.g., Adams, Kristin David. 2004. The Folly of Uniformity: Lessons from the Restatement Movement. Hofstra Law Review 33:423, 432n.41. (hereinafter cited as Adams, Lessons).
- 3.
Publication in final form followed in 2006. The ALI publishes Restatements pursuant to a long-lived joint venture with the West Publishing Company. The ALI (not the individual Restatement Reporter) owns the copyright interest in the work.
- 4.
American Law Institute. 1923. Certificate of Incorporation. www.ali.org/doc/charter.pdf. Accessed 27 Feb 2013.
- 5.
For recognition that “it was natural for the restatements to get out of date,” see Jansen, Nils and Ralf Michaels. 2007. Private Law and the State: Comparative Perceptions and Historical Observations 15, 57. 2008. Beyond the State: Rethinking Private Law. (Nils Jansen & Ralf Michaels eds. 2008).
- 6.
For an image of Searching for Utopia, see Fabre, Jan. 2011. Searching for Utopia. www.panoramio.com//photo/55203509. Accessed 27 Feb 2013.
- 7.
See Green, Michael. 2011. The Impact of the Civil Jury on American Tort Law. Pepperdine Law Review. 38: 337.
- 8.
One documented example of another circumstance is the influence of lobbying by pro-defendant organizations to champion the enactment of statutes that cap recoveries or, one way or another, reduce the prospect of recovery. See Cross, Frank. 2011. Tort Law and the American Economy. Minnesota Law Review 96:28. Professor Cross’s data show no negative effects associated with more pro-plaintiff tort law; indeed pro-plaintiff tort law appears to be associated with economic growth. Id. at 86–89.
- 9.
American Law Institute. 2005. Capturing the Voice of the American Law Institute: A Handbook for ALI Reporters and Those Who Review Their Work 1. www.ali.org/doc/stylemanual.pdf. Accessed 27 Feb 2013. (hereinafter cited as ALI, Handbook).
- 10.
American Law Institute. Bylaw 6. www.ali.org/doc/Bylaws07/pdf. Accessed 27 Feb 2013.
- 11.
Feldthusen, Bruce. 2011. What the United States Taught the Commonwealth About Pure Economic Loss: Time to Repay the Favor. Pepperdine Law Review. 38:309, 319–320. (quoting Letter from Mark P. Gergen, Fondren Chair of Faculty Excellence, University of Texas School of Law, to Advisers, Consultants, and Council Members, American Law Institute (Dec. 2007)).
- 12.
Restatement (Third) of Torts: Liability for Economic Harm § 1,cmt.c. 2012. (Tentative Draft No. 1, Apr. 4, 2012).
- 13.
Id. § 5, cmt. b.
- 14.
Schwartz, Alan and Robert E. Scott. 1995. The Political Economy of Private Legislatures. University of Pennsylvania Law Review 143:595, 650. Their primary focus in this article, revisions to the UCC, may limit the force of the article’s conclusions as applied to Restatements. The general conclusions are that a “private legislature” (like the ALI) “will have a strong status quo bias and sometimes will be captured by private interests.” Id. But apart from a brief treatment of an early round of work on the Restatement Third of Torts applicable to one issue in products liability, see id. at 648–649, the article does not address Restatement projects.
- 15.
DeMott, Deborah A. 2007. The First Restatement of Agency: What Was the Agenda?. Southern Illinois Law Journal 32: 17, 24.
- 16.
Id. at 24–25.
- 17.
This practice has been discontinued. The records it created are, unsurprisingly, full of insight into the intellectual and institutional development of the ALI’s work in its early era. The ALI continues to publish transcripts of its Annual Meetings, but the earlier practice of publishing minutes from Council meetings has also been discontinued. The Institute’s Archives (which are not complete) are maintained by and accessible through the University of Pennsylvania. The Biddle Law Library. www.law.upenn.edu/bll/archives/ali/. Accessed 27 Feb 2013.
- 18.
American Law Institute. Handbook at 3. www.ali.org/doc/stylemanual.pdf. Accessed 28 Feb 2013.
- 19.
Id. at 2–3.
- 20.
Id. at 3.
- 21.
Id. at 2.
- 22.
Id.
- 23.
See Jansen, Nils. 2010. The Making of Legal Authority: Non-legislative Codifications in Historical and Comparative Perspective 107–108.
- 24.
Id. at 105, quoting American Law Institute, Report of the Committee Proposing the Establishment of an American Law Institute 20.
- 25.
Id.
- 26.
Madero, Marta. 2010. Tabula Picta: Painting and Writing in Medieval Law 3, quoting Baxandall, Michael, Giotto and the Orators. 1971. Humanist Observers of Painting in Italy and the Discovery of Pictorial Composition. 1350–1450, 47. Many thanks to Emily Kadens for alerting me to Madero’s book.
- 27.
Id. at 3, quoting Baxandall, supra note 26, at 44.
- 28.
American Law Institute. Handbook at 4–5. www.ali.org/doc/stylemanual.pdf. Accessed 28 Feb 2013.
- 29.
Cardozo, Benjamin N. 1924. The Growth of the Law 4, quoted in King, Joseph H. 2011. The Torts Restatement’s Inchoate Definition of Intent for Battery, and Reflections on the Province of Restatements. Pepperdine Law Review 38: 623, 651.
- 30.
King, supra note 29, at 662.
- 31.
Wechsler, Herbert. 1969. The Course of the Restatements. American Bar Association Journal 55:147, 149. Quoted in King, supra note 29, at 663.
- 32.
American Law Institute. Handbook at 7. www.ali.org/doc/stylemanual.pdf. Accessed 28 Feb 2013. (“and scattered statutes” is italicized in the Handbook, but not in the founding document).
- 33.
Id.
- 34.
Id. at 8.
- 35.
Restatement (Third) of Agency § 3.08 (1).
- 36.
DeMott, supra note 15, at 36.
- 37.
Restatement (Second) of Agency § 122.cmt.a. A further comment seems to reflect the assumption that the common-law rule retained vitality as applied to married women, observing that “[w]here incapacity is created by marriage, by becoming an enemy alien, by losing citizenship or by conviction of a crime, the incapacity operates from the moment it is created until the condition ends.” Id. cmt. d. Likewise, a comment to an earlier sections states that “[t]o the extent that a married woman can contract or appoint others as agent, she has capacity to appoint her husband to contract or do other acts on her account, aside from statute.” Id. § 22, cmt. a.
- 38.
American Law Institute. Handbook at 10. www.ali.org/doc/stylemanual.pdf. Accessed 28 Feb 2013.
- 39.
Id.
- 40.
For the Second Restatement, L.C.B. Gower served as an adviser through the third tentative draft. Professor Gower was at the time a visiting professor at Harvard Law School. See Restatement (Second) of Agency viii. For the Third Restatement, Professors Francis M.B. Reynolds (Worcester College, Oxford) and Gareth Jones (Trinity College, Cambridge) served as advisers, Professor Jones throughout the project’s duration and Professor Reynolds from 1999 onward. Restatement (Third) of Agency v.
- 41.
ALI, Handbook at 4.
- 42.
See King, supra note 29, at 659.
- 43.
Kelley, Patrick J. 2007. Introduction: Did the First Restatement Adopt a Reform Agenda?. Southern Illinois Law Journal 32:3.
- 44.
Floyd R. Mechem served as the initial Reporter from 1923 until his death in 1928. He was succeeded by Warren A. Seavey, who completed the first Restatement and served as the sole Reporter for the second Agency Restatement. See DeMott, supra note 15, at 18–23.
- 45.
Id. at 31, quoting Warren A. Seavey, Discussion of the Restatement of Agency Tentative Draft No. 7, 10 A.L.I. Proc. 318 (1931–1932).
- 46.
Id.
- 47.
DeMott, supra note 15, at 28–30.
- 48.
Holmes, Oliver Wendell. 1923. The Common Law: 180–183. 1891. Agency I. Harvard Law Review 4: 345–350–351. 1891. Agency II. Harvard Law Review 5:1, 14.
- 49.
Seavy, Warren A. 1920. The Rationale of Agency. Yale Law Journal 29:859. Seavey reported in his memoirs that this article was the basis on which he was invited to join the Restatement project as an adviser to the first Reporter, Floyd Mechem. As it happens, the Harvard Law Review (Holmes’s publisher) rejected Seavey’s article, according to Seavey. He joined Harvard’s faculty in 1929. DeMott, supra note 15, at 22 n. 74.
- 50.
Mechem, Floyd R. A Treatise on the Law of Agency: Including not only a Discussion of the General Subject but also Special Chapters on Attorneys, Auctioneers, Brokers and Factors. (1st ed. 1889, 2nd ed. 1914).
- 51.
Bowstead and Reynolds. 2010. Agency. P.G. Watts ed. 20th ed.
- 52.
Corbin, Arthur L. 1950. Corbin on Contracts.
- 53.
Duxbury, Neil. 1995. Patterns of American Jurisprudence 140.
- 54.
E.g., Green, Leon A. 1927. The Rationale of Proximate Cause. 1930. Judge and Jury.
- 55.
Prosser, William L. 1952. Handbook of the Law of Torts.
- 56.
American Law Institute. Handbook at 5. www.ali.org/doc/stylemanual.pdf. Accessed 28 Feb 2013.
- 57.
Adams, Kristin David. 2007. The American Law Institute: Justice Cardozo’s Ministry of Justice?. Southern Illinois Law Journal 32:173, 182.
- 58.
1938. United States 304:64.
- 59.
Dorsen, David M. 2012. Henry Friendly: Greatest Judge of His Era. 314. Judge Friendly, a member of the ALI’s Council from 1961 until his death in 1986, was an influential participant in several ALI projects. Id. at 132. These involved the jurisdiction of federal and state courts, administrative law, corporate governance, conflicts of laws, codification of the federal securities laws, international jurisdiction, and a pre-arraignment code for prisoners. Id. Only one of these—conflict of laws—was a Restatement project. Overall Friendly’s legal world was not the simpler common-law era reflected in the first generation of Restatements. His pre-judicial career involved complex business transactions and service as the general counsel of Pan American Airways. Although he wrote influential opinions applying common-law doctrines, his biographer emphasizes Friendly’s distinctive contributions to business law in judicial opinions and, in extra-judicial writings, to public-law questions and court reform. Id. at 346.
- 60.
Lepsius, Suzanne. Taking the Institutional Context Seriously: A Comment on James Gordley. 232, 242, in Nils Jansen and Ralf Michaels, supra note 5.
- 61.
Northern Mariana Code. 7:§ 3401.
- 62.
Virgin Island Code. § 4.
- 63.
Adams, Kristin David. 2004. The Folly of Uniformity: Lessons from the Restatement Movement. Hofstra Law Review 33: 423, 429.
- 64.
Id. at 428–429.
- 65.
Id. at 429.
- 66.
See American Law Institute. 2004 Annual Report Published Case Citations to Restatements of the Law. www.ali.org/annualreports/2004/AM04_07-RestatementCitations04.pdf In particular, as of March 1, 2004, state and federal courts in the United States had cited the Restatements in published opinions 161,486 times. Of that total, Torts accounted for 67,336 citations, Contracts for 28,739, and Agency for 15,830. Conflict of Laws trailed Agency with 13,496 citations followed by Judgments with 10,773 and Trusts at 10,704. The table also breaks down citations to each Restatement on a state-by-state basis. These numbers are not adjusted for the overall number of published opinions from courts in particular states. Cumulatively across Restatements, California accounted for the largest number of citations (8264) followed by Pennsylvania (7874) and New York (6628). The 2004 data are the latest available, at least publicly.
- 67.
Henderson, James A., Jr. and Aaron D. Twerski. 1995. A Proposed Revision of Section 402A of the Restatement (Second) of Torts. Cornell Law Review 77:1512. Quoted in, inter alia, Vandall, Frank J. 1995. The Restatement (Third) of Torts, Products Liability, Section 2(B): Design Defect. Temple Law Review 68:167.
- 68.
Christie, George C. 2012. The Law of Torts. 5th edition. In those states, product-defect cases are within the ambit of general negligence or warranty law.
- 69.
1997. Restatement (Third) of Torts: Product Liability § 2.
- 70.
Jansen, supra note 23, at 43.
- 71.
Id. at 43–44.
- 72.
Id. at 44.
- 73.
ALI, Handbook at 5.
- 74.
E.g., Leon A. Green, Tort Law Public Law in Disguise, 38 Tex. L. Rev. 1 (1959).
- 75.
For further discussion, see DeMott, Deborah A. 2003. Statutory Ingredients of Common Law Change: Issues in the Development of Agency Doctrine. Commercial Law and Practice 56, 68–73. Sarah Worthington ed.
References
Articles
Adams, Kristin David. 2004. The Folly of Uniformity: Lessons from the Restatement Movement. Hofstra Law Review 33.
Adams, Kristin David. 2004. The Folly of Uniformity: Lessons from the Restatement Movement. Hofstra Law Review 33.
Adams, Kristin David. 2007. The American Law Institute: Justice Cardozo’s Ministry of Justice? Southern Illinois Law Journal 32.
Bradford, Anu & Eric Posner (2011), Universal Exceptionalism in International Law, 52 Harvard International Law Journal 1.
Cardozo, Benjamin N. 1924. The Growth of the Law 4, quoted in King, Joseph H. 2011. The Torts Restatement’s Inchoate Definition of Intent for Battery, and Reflections on the Province of Restatements. Pepperdine Law Review 38.
Cross, Frank. 2011. Tort Law and the American Economy. Minnesota Law Review 96.
DeMott, Deborah A. 2003. Statutory Ingredients of Common Law Change: Issues in the Development of Agency Doctrine. Commercial Law and Practice 56.
DeMott, Deborah A. 2007. The First Restatement of Agency: What Was the Agenda?. Southern Illinois Law Journal 32.
E.g., Leon A. Green, Tort Law Public Law in Disguise, 38 Tex. L. Rev. 1 (1959)
Feldthusen, Bruce. 2011. What the United States Taught the Commonwealth About Pure Economic Loss: Time to Repay the Favor. Pepperdine Law Review. 38.
Green, Michael. 2011. The Impact of the Civil Jury on American Tort Law. Pepperdine Law Review. 38.
Holmes, Oliver Wendell. 1923. The Common Law:180–183. 1891. Agency I. Harvard Law Review 4: 345–350-351. 1891. Agency II. Harvard Law Review 5:1, 14.
Jansen, Nils and Ralf Michaels. 2007. Private Law and the State: Comparative Perceptions and Historical Observations 15, 57. 2008. Beyond the State: Rethinking Private Law. (Nils Jansen & Ralf Michaels eds. 2008).
Kelley, Patrick J. 2007. Introduction: Did the First Restatement Adopt a Reform Agenda?. Southern Illinois Law Journal 32.
Schwartz, Alan and Robert E. Scott. 1995. The Political Economy of Private Legislatures. University of Pennsylvania Law Review 143.
Seavy, Warren A. 1920. The Rationale of Agency. Yale Law Journal 29.
Vandall, Fank J. 1995. The Restatement (Third) of Torts, Products Liability, Section 2(B): Design Defect. Temple Law Review 68.
Books
Bowstead and Reynolds. 2010. Agency. P.G. Watts ed.20th ed.
Christie, George C. 2012. The Law of Torts. 5th edition.
Corbin, Arthur L. 1950. Corbin on Contracts.
Dorsen, David M. 2012. Henry Friendly: Greatest Judge of His Era. 314.
Duxbury, Neil. 1995. Patterns of American Jurisprudence 140.
E.g., Green, Leon A. 1927. The Rationale of Proximate Cause. 1930. Judge and Jury.
Jansen, Nils. 2010. The Making of Legal Authority: Non-legislative Codifications in Historical and Comparative Perspective.
Madero, Marta. 2010. Tabula Picta: Painting and Writing in Medieval Law.
Mechem, Floyd R. A Treatise on the Law of Agency: Including not only a Discussion of the General Subject but also Special Chapters on Attorneys, Auctioneers, Brokers and Factors. (1st ed. 1889, 2nd ed. 1914).
Prosser, William L. 1952. Handbook of the Law of Torts.
Restatement (Third) of Torts: Liability for Economic Harm § 1, cmt.c. 2012. (Tentative Draft No. 1, Apr. 4, 2012).
Internet and Other Sources
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American Law Institute. Bylaw 6. www.ali.org/doc/Bylaws07/pdf. Accessed 27 Feb 2013.
American Law Institute. Handbook at 10. www.ali.org/doc/stylemanual.pdf. Accessed 28 Feb 2013.
American Law Institute. Handbook at 3. www.ali.org/doc/stylemanual.pdf. Accessed 28 Feb 2013.
American Law Institute. Handbook at 4–5. www.ali.org/doc/stylemanual.pdf. Accessed 28 Feb 2013.
American Law Institute. Handbook at 5. www.ali.org/doc/stylemanual.pdf. Accessed 28 Feb 2013.
American Law Institute. Handbook at 7. www.ali.org/doc/stylemanual.pdf. Accessed 28 Feb 2013.
American Law Institute. 1923. Certificate of Incorporation. www.ali.org/doc/charter.pdf. Accessed 27 Feb 2013.
American Law Institute. 2004 Annual Report Published Case Citations to Restatements of the Law. www.ali.org/annualreports/2004/AM04_07-RestatementCitations04.pdf.
Fabre, Jan. 2011. Searching for Utopia. www.panoramio.com//photo/55203509.
The Biddle Law Library. www.law.upenn.edu/bll/archives/ali/. Accessed 27 Feb 2013.
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DeMott, D. (2014). Restatements and Non-State Codifications of Private Law. In: Wang, WY. (eds) Codification in International Perspective. Ius Comparatum - Global Studies in Comparative Law, vol 1. Springer, Cham. https://doi.org/10.1007/978-3-319-03455-3_5
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